14, Apr 2021 | CJP Team
Recently the Assam team of Citizens for Justice and Peace (CJP) had discovered many notices by Foreigners’ Tribunals (FT) pasted on electricity poles in Bongaigaon in Assam. This is a clear violation of procedure laid down explicitly by the Foreigners (Tribunal) Order of 1964.
As per point 3 of this order that deals with Procedure for disposal of questions, there are several steps that need to be followed when notice is served to the person against whom a foreigner reference is made. It is noteworthy that reference is either made by the Border Police (in case of suspected foreigners) or by the Election Commission (in case of D-Voters). Such notice must be served within 10 days of receipt of reference. The notice must be served in both English and the official language of the state, which is Assamese in the case of Assam.
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. We are also helping secure the release of detention camp inmates as per the Supreme Court order on their conditional release. 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.
The procedure related to the manner in which such notice should be served under different circumstances (including in case of absence of the person concerned, change of address), is laid down in sub-point 5 of main point 4. This is what it says:
(5)(a) The notice shall be served at the address where the proceedee last resided or reportedly resides or works for gain, and in case of change of place of residence, which has been duly intimated in writing to the investigating agency by the alleged person, it shall be served at such changed address by the Foreigners Tribunal; (b) if the proceedee is not found at the address at the time of service of notice, the notice may be served on any adult member of the family of the proceedee and it shall be deemed to be served on the proceedee; (c) where the notice is served on the adult member of the family of the proceedee, the process server shall obtain the signature or thumb-impression of the adult member on the duplicate of the notice as a token of proof of the service, (d) if the adult member of the family of the proceedee refuses to put a signature or the thumb impression, as the case may be, the process server shall report the same to the Foreigners Tribunal; (e) if the proceedee or an available adult member of his or her family refuses to accept the notice, the process server shall give a report to the Foreigners Tribunal in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service and the process server shall obtain the signature or thumb impression of such witness, if he or she is present and willing to sign or put his or her thumb-impression, as the case may be; (f) if the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, the process server shall affix a copy of the notice on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business, and shall return the original to the Foreigners Tribunal from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed; (g) where the proccedee or any adult member of his or her family or her is not found at the residence, a copy of the notice shall be pasted in a conspicuous place of his or her residence, witnessed by one respectable person of the locality, subject to his or her availability and willingness to be a witness in that regard and the process server shall obtain the signature or the thumb-impression of that person in the manner in which such service is affected; (h) where the proceedee resides outside the jurisdiction of the Foreigners Tribunal, the notice shall be sent for service to the officer in-charge of the police station within whose jurisdiction the proceedee resides or last resided or is last known to have resided or worked for gain and the process server shall then cause the service of notice in the manner as provided hereinabove; (i) if no person is available or willing to be the witness of service of notice or refuses to put his or her signature or thumb-impression the process server shall file a signed certificate or verification to that effect, which shall be sufficient proof of such non-availability. unwillingness and refusal; (j) on receipt of the signed certificate or verification referred to in clause (i) the Foreigners Tribunal shall return such reference with such directions as it thinks fit to the competent authority for tracing out the proceedee and produce before the said Tribunal.
For the purposes of the case at hand, i.e pasting FT notices on electricity poles in Bongaigaon, one must take a closer look at points (e), (f) and (g).
Let us take the situation mentioned in point (e) first. Assuming that the proceedee or an adult member of their family refused to accept the notice, “the process server shall give a report to the Foreigners Tribunal in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service and the process server shall obtain the signature or thumb impression of such witness”. There is no requirement for pasting of the notice anywhere.
Assuming that the authorities discovered that the proceedee was not present at the address where they attempted to serve notice, they should have as per procedure detailed in point (f), stuck the notice “on the outer door or some other conspicuous part of the house in which the proceedee ordinarily resides or last resided or reportedly resided or personally worked for gain or carries on business”. But the notices were neither stuck on the outer door or any conspicuous part of the house, but on electricity poles that are public property and stand alongside roadways.
In the instance that the proceedee or any adult member of their family was not found at the address, they should have as per provisions of point (g) ensured that “a copy of the notice shall be pasted in a conspicuous place of his or her residence, witnessed by one respectable person of the locality, subject to his or her availability and willingness to be a witness in that regard and the process server shall obtain the signature or the thumb-impression of that person”. However, once again, the notice was not pasted on any part of anyone’s house, but on public property alongside a road.
It is clear that by pasting notices on public property, authorities have clearly violated set procedure. But the bigger question is, who authorised this blatant violation of the law, and why?