Citizenship is the key to enjoyment of the rights, said the court.
The Gauhati High Court has set aside a Foreigners Tribunal's ex-parte decision to strip a family of citizenship in Assam and said such judgements affect the fundamental rights of a person and should be delivered after analysing the evidence that may be produced by the proceedee and "not by way of default".
Hearing a writ petition by Rajendra Das and his four family members, a High Court Bench comprising Justices N Kotiswar Singh and Malasri Nandi cancelled the order by the Foreigners' Tribunal-4th of Cachar, which had declared the petitioners foreigners in an ex-parte order in 2018.
Considering the nature of the case, the High Court disposed the case on November 24 this year without issuing any formal notice to the respondents after allowing the family bail and asking them to reappear before the same tribunal by December 24.
The FT-4th of Cachar had in 2018 passed an ex-parte order declaring Rajendra Das, his wife Renubala and minor children Ananda, Biswajit and Babita, all residents of Mahadevpur village in Cachar district, foreigners as they had failed to appear before the Tribunal after being served notice and also did not file written statement after seeking time.
The counsel for the petitioners informed the High Court that Mr Das could not appear before the tribunal due to his ill health which had resulted in the passing of the ex-parte order. They had sought a review of the order, but the FT concerned turned it down.
"This Court has reiterated the importance of citizenship of a person in today's world. It is the key to enjoyment of the rights guaranteed by the law of the land.
"It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity," the High Court order said.
A person stripped of citizenship will be rendered a stateless person if any other country refuses to accept him or her as its citizen, it added.
"Such is the overarching significance and importance of citizenship to a person. Therefore, any such proceeding which has the potential of depriving citizenship ought to be accordingly examined from that perspective also," the judges suggested.
In a normal proceeding before a court of law, in spite of any adverse finding, the person will continue to enjoy the rights as a citizen, they said.
"Though a proceeding under the Foreigners' Tribunal, is merely quasi-judicial in nature, yet an adverse opinion by the Tribunal that the proceedee is a foreigner almost seals the fate of the proceedee as far as the issue of citizenship is concerned," the judgement said.
The authorities are expected to declare such a person a foreigner in terms of the opinion of the Tribunal and he would be liable to be detained and deported, it added.
"Thus, ordinarily, such an opinion of the Tribunal, in our view, ought to be given after analyzing the evidence that may be produced by the proceedee and not by way of default as has been done in the present case.
"...Proceeding before a Tribunal, though is a summary one, has huge implications for the right of a person. The Full Bench of this Court in State of Assam & Ors. vs Moslem Mondal & Ors. (2013) has also emphasized that citizenship has to be jealously guarded," the order said.
Mr Das had presented to the court the voters' list of 1965 and 1970, in which the names of his parents Gandhi Lal Das and Sumurta Bala Das were mentioned. The petitioners had also presented a certificate of marriage of Renubala and Das which was issued by the Mahadevpur gaon panchayat.
"...The petitioners submit that there are sufficient materials to show that they are Indians and not foreigners. We are also of the view that if the petitioners are able to prove the aforesaid documents, they may have a legitimate claim that they are Indians and not foreigners," the High Court said.
The bench said that it was conscious of the fact that ex-parte orders cannot be interfered in a routine manner. But in this case the matter is related to citizenship, a very important right of a person.
The Tribunal's ex-parte order would have a cascading affect on other members of Das' family - his wife and minor children as they are dependent on him, it said.
"Accordingly, considering the nature of the case, we are of the view that the petitioners may be offered another opportunity to appear before the learned Tribunal to prove that they are Indians and not foreigners," the judges said, setting aside the impugned order by the FT.
If the petitioners are not able to engage any counsel on their own and of their choice, they may approach the Cachar District Legal Services Authority for providing a legal aid counsel, the court said.
Since the citizenship of the petitioners has come under cloud they will be on bail during the proceedings for which they will have to appear before the Cachar superintendent of police(B), within 15 days by furnishing a bail bond of Rs 5,000 each with one local surety of the like amount, the High Court ordered.
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