25, Sep 2019 | CJP Team
In a shocking instance of negligence and possible abuse of power, 282 people were declared foreigner by a Foreigners’ Tribunal (FT) in Assam without any record of due process, reasoning or even a signed order! When the Gauhati High Court took suo motu cognizance of the matter, and ordered an inquiry, it was revealed that several of those declared foreigner were either proved to be Indians or that there were serious anomalies including missing, double or mismatched judgments!
The matter came to light via an email dated April 23, 2018 communicated by the Member In-charge, Foreigners’ Tribunal No.4, Morigaon, addressed to the Principal Secretary to the Govt. of Assam, Home and Political Department, with a copy marked to the Registrar (Judl), Gauhati High Court. The email said that 288 references were shown disposed of by the earlier Member but detailed opinions signed by the Member were not available in the case records!
Now that the final NRC has been published, and 19,06,657 people have been excluded from the final list, CJP’s campaign has become even more focused. Our objective now, is to help these excluded people defend their citizenship before Foreigners’ Tribunals. For this we have already started conducting a series of workshops to train paralegals to assist people at FTs. We will also be publishing a multi-media training manual containing simplified aspects of legal procedure, evidentiary rules, and judicial precedents that will ensure the appeals filed against the NRC exclusions in the FTs are comprehensive and sound, both in fact and in law. This will assist our paralegals, lawyers and the wider community in Assam to negotiate this tortuous process. For this we need your continued support. Please donate now to help us help Assam.
Shocked by the gravity of the situation the Gauhati High Court swung into action and on June 15, 2018 issued Notice with direction to the Principal Secretary, Home and Political (B) Department, Government of Assam to seize the case records of those 288 references and to place those records before the Court along with a detailed report compiled in that regard.
On October 3, 2018, Deputy Secretary to the Government of Assam, Home & Political Department, submitted his report stating 50 case records out of the 288 cases were already seized on February 21, 2018. In its order dated September 19, 2019, the Gauhati HC narrates the aftermath of the inquiry as follows:
“After making due scrutiny through the Special Cell of the Office of the Addl. D.G.P.(Border), Assam, 13 nos. of cases out of the seized 50 cases where the proceedees have been declared as India, were already recommended by the State Level Screening Committee for filing writ petitions before this Court. Accordingly, the case records of the 13 cases were handed over to the Special Standing Counsel, Gauhati High Court. In so far as the rest 37 cases are concerned, the Report indicates that the same were found to be correct in all respects. The Report also mentions that out of the remaining 238 case records, the Superintendent of Police (Border), Morigaon had placed 232 case records before the Addl. D.G.P (Border), Assam. On a scrutiny so conducted it was reported that out of the 232 case records, as many as 175 cases have been found correct in all respects, while in the remaining 57 cases anomalies were detected.”
According to the report, the nature of the anomalies fall under the following categories:
“(a) Judgment not found on record – 11
(b) Mismatching between Judgment Copy with Order Sheet – 06
(c) Dual Judgment – 05
(d) No vacate order found- 32
(e) Number of proceedee discrepancy – 02
(f) Undisposed since proceedee expired – 01”
It was also discovered that the actual number of cases seized was 282 and not 288, because 6 cases had been repeated.
In many cases the discrepancies were shocking. For example, in the case of Sri Rabindra Chanda (FT-(D) 125/2015), proceedee’s name has been recorded as Rabindra Chanda S/o Ridai Chanda in the reference, but in the opinion dated June 18, 2016, his father name is mentioned as Rupchand Biswas and in some other exhibited copies Smti. Rahima Khatun! Interestingly, in case of one Md. Anuwar Hussain (FT-(D) 396/2015), the proceedee’s name was recorded as Md. Anuwar Hussain S/o Abdul Rahman in the reference, but in the opinion another two names are found viz, Rahima Khatoon and her father name is recorded as Rupa Chand Biswas! This is not a minor mistake, but an unforgivable case of unprofessionalism that cost two people and their families time, money, energy, dignity and freedom!
The Gauhati HC order
Based on these finding the Gauhati HC has ruled, “… we hold that mere noting in the note-sheet or passing of an order that reference was disposed of without a reasoned opinion/absence of judgment copy/dual judgment/without vacating earlier order in the case file would be no order in the eye of law. Such a noting or order cannot be construed to be an order disposing of a reference case by a Foreigners Tribunal. There has to be an opinion on record which must carry the seal and signature of the Presiding Officer of the Tribunal. In the absence thereof, such a reference will have to be treated as not being disposed of and be considered as a pending reference, which would have to be heard afresh.”
The Gauhati HC also expressed their disdain for the matter saying, “Before parting with the record, we express our disappointment over the way the Member conducted himself. This was not expected. In the ordinary course this would have called for some action, disciplinary or otherwise. We leave it at that.”
The entire order may be read here: