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Mere absence after filing documents not justification for FT order against proceedee: Gauhati HC Landmark order is a lifeline for people declared foreigner in ex parte judgments by FTs

04, Jan 2020 | Deborah Grey

In a significant order delivered on December 20, the Gauhati High Court has given a new lease of life to those defending their citizenship before Foreigners’ Tribunals in Assam. The court has ruled that if the proceedee is unable to appear for hearings but has filed relevant documents, they must be taken into consideration and a decision cannot be made solely based on his absence.

The court was hearing the matter of one Bijoy Kumar Das of Reng Reng village in Karbi Anglong. Das had moved a writ petition before the High Court against an ex parte order by the Foreigners’ Tribunal in Diphu declaring Das a foreigner. Das was unable to appear for hearings as he was suffering from serious liver and chronic kidney ailments. An ex parte judgment was passed against Das on May 22, 2015, but he couldn’t even file an appeal against it until 2019 on account of his health.

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.

Taking note of this the court said, “We have noticed that there is substantial delay in filing this writ petition inasmuch as the order assailed in the proceeding was passed on 22-05-2015, i.e. more than four years back. Having regard to the statements made in the writ petition, we are of the view that the petitioner has not succeeded in explaining the delay in approaching the Court in a satisfactory manner. However, we have also noticed that the petitioner had apparently filed his written statement by enclosing photocopies of the documents in support of his claim of citizenship, which includes Voters’ List of 1970 containing his name and also the citizenship certificate issued by the competent authority. But in the impugned order, the learned Tribunal has not referred to the statements made in the written statement or the documents filed by the petitioner.”

The court added –

“Law requires the proceedee to furnish proof of his citizenship and therefore, the burden of proof will always be on the proceedee. However, even if a proceedee remains absent after filing written statement and documents, the learned Tribunal would be duty bound to take note of the materials available on record before rendering its opinion. The mere fact that the proceedee has remained absent after filing written statement and documents cannot be a justification for the Tribunal to give an opinion against the proceedee without considering the materials brought on record.”

This is significant because FTs often pass unfavourable judgments ex parte i.e in the absence of the proceedee. But true justice cannot be devoid of compassion. Many a time proceedees are unlettered, daily wage workers who cannot afford to fight long drawn out legal battles. Many proceedees are elderly and ailing. Often, proceedees are rural housewives who are the primary caregivers for their families and cannot set aside their domestic responsibilities or travel alone. It is these people who are most often at the receiving end of unfavourable judgments. Ideally, if they submit their documents, their lawyers should be allowed to appear in their behalf in court, while the proceedees continue about their daily activities. By cautioning FTs against making absence the sole criterion for an adverse judgment, the Gauhati HC has stood by these vulnerable people.

The entire order may be read here:

 

Related:

Detention Camp survivor’s family pleads that they be spared further misery

CJP reaches out to a declared foreigner whose brothers declared citizens

Person with two names confuses NRC officials

(Feature Image Courtesy – News Track English)

 

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