Khodeza Bibi v. Union of India, WP(C)/4035/2018
Read the judgment here.
Date of the decision: 14.03.2022
Court: Gauhati High Court
Judges: Justice. N. Kotiswar Singh and Justice Nani Tagia
Summary: The Gauhati High Court set aside an ex-parte Foreigners’ Tribunal order declaring the petitioner a foreigner and remanded the case on account of the petitioner’s non-appearance being unintentional.
Facts: A notice of proceeding before the Foreigners’ Tribunal was served on the petitioner. However, the petitioner did not receive any notice from the Tribunal as the notice was served on the last place of her residence and the petitioner had shifted somewhere else along with her family.
Due to her non-appearance and non-filing of written statement, the tribunal passed an ex-parte order, declaring her a foreigner who had entered India from Bangladesh after 25.03.1971. The petitioner approached the Gauhati High Court to set aside the ex-parte order on the ground that she had not deliberately avoided the notice and otherwise had sufficient documents to prove her citizenship.
Holding: The High Court set aside the ex-parte order and directed the petitioner to appear before the Foreigners’ Tribunal for fresh proceedings on merits. The Court reasoned that since citizenship is one of the most important rights of a person, a question of citizenship should be determined on merit only after effectively hearing the person concerned and not by default.
The Court considered the circumstances behind the petitioner's non-appearance, and noted that “it is not a case of deliberate avoidance of the proceeding but for the reasons which we find not to be unreasonable”. It was found that in the case, “there was no effective hearing of the petitioner before the ex parte order was passed” (paragraph 10). Consequently, the case was remanded and the petitioner was allowed to file a written statement and produce documents to prove her citizenship before the Foreigners’ Tribunal.
Significance: This High Court order reiterates the stance that citizenship is fundamental to realization of all other rights conferred on an individual and thus, should be decided upon merit, after hearing the person concerned, instead through ex-parte orders. The Gauhati High Court correctly applied the standard laid out in State of Assam v. Moslem Mondal (paragraph 91), wherein a Full Bench of the Gauhati High Court held that an ex-parte order can be set aside if it is proved that the proceedee was not served with the notice or that they were prevented by sufficient cause from appearing in the proceeding, the reason for which was beyond their control.
In the past, the Court has followed a similar line of reasoning to allow another opportunity to the petitioner. This Court (See here, and here) has considered that where the court has been satisfied that the case is not of deliberate avoidance of the proceeding but it was because of unavoidable circumstances, the petitioner has the right to be granted effective hearing and contest the case on merits. In the case, the Court has further highlighted that where the petitioner has documents to make a legitimate claim before the Tribunal, the opinion of the Tribunal ought to be given after analyzing all the relevant evidences that may be produced by the proceedee and not by way of default.
In the absence of any argument from the State that the service was proper, the Court engages in an assessment of the bona fides of the Petitioner rather than an evaluation of whether the service was properly carried out as per the Foreigners Tribunal Order, 1964. This effectively mitigated the rigour of the technicalities of the law, in accordance with the general principles of natural justice.
In summation, it is a welcome order where the Court has taken a step ahead in upholding the right to be given a reasonable opportunity of being heard.
Resources:
Sabhapandit, T, & Baruah, P (2021) ‘Untrustworthy and Unbelievable’, The Statelessness & Citizenship Review, 3(1), 236–58.
Citizenship Should Ordinarily be Decided on Merit Rather Than by Default: Gauhati HC, Newsclick, 30 July 2021.
Parichay Team, Challenging Ex Parte Orders on the Ground of Improper Service of Notice, Parichay Blog.
Abhishek Saha, Explained: How do Foreigners’ Tribunals work ? , Indian Express.
Parichay Team, Challenging Ex Parte Orders – Special Circumstances, Parichay Blog.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Shreyasi Singh.