In a significant legal development concerning citizenship determination, the Gauhati High Court has set aside a 16-year-old ex-parte order and granted a woman a fresh opportunity to prove her Indian citizenship. Highlighting the fundamental importance of the right to prove one’s lineage, the High Court observed that despite a substantial delay in approaching the court, the petitioner deserved a chance to establish her citizenship, especially since her grandfather had been registered as an Indian citizen in 1956 and her uncle was declared not to be a foreigner.
The division bench of Justice Kalyan Rai Surana and Justice Shamima Jahan passed the order on a writ petition filed by Niva Suklabaidya. The petitioner challenged an ex-parte opinion of the Foreigners Tribunal dated May 12, 2010, which had declared her a foreigner of the post-March 25, 1971 stream.
Background of the Case
The petitioner, Niva Suklabaidya, asserted that she is the daughter of the late Mira Suklabaidya, who was the son of the late Umeshram Suklabaidya. According to her petition, Umeshram Suklabaidya entered India from the erstwhile East Pakistan and was issued a certificate of registration on November 18, 1956, officially registering him as an Indian citizen. Furthermore, she claimed that her uncle, Biren Sukla Baidya, was declared “not a foreigner” by the Foreigners Tribunal in 2017.
Despite having these roots, Suklabaidya was declared a foreigner in 2010 through an ex-parte proceeding. Explaining the circumstances that led to this order, Suklabaidya submitted that she is an illiterate woman who is entirely unaware of complex legal procedures. She stated that although she was physically present before the tribunal on the dates designated for evidence, her counsel was absent. Consequently, the prosecution witnesses, including the enquiry officer, were not cross-examined on her behalf.
The petitioner added that she had informed her counsel at the time that she was suffering from severe rheumatic pain. Although the counsel had assured her that necessary legal steps would be taken on her behalf, no steps were ultimately taken, leading to the issuance of the ex-parte opinion declaring her a foreigner.
Arguments of the Parties
Advocate M Dutta, appearing for the petitioner, reiterated that the lack of representation and the failure to cross-examine prosecution witnesses occurred solely due to the absence of the petitioner’s former counsel, coupled with her illiteracy and medical condition.
Conversely, Central Government Counsel A K Dutta strongly opposed the petition. He argued that there was an unexplained and inordinate delay in approaching the court. The ex-parte opinion was passed on May 12, 2010, whereas the writ petition was only filed on October 1, 2019—representing a delay of over nine years and four months. The Central Government counsel contended that by accepting her status as a foreigner for nearly a decade without taking legal recourse, the petitioner had disentitled herself from seeking any discretionary relief from the court.
The Court’s Analysis and Observations
The Gauhati High Court carefully balanced the long delay against the nature of the citizenship claims presented by the petitioner. The court emphasized that the presence of official citizenship records for the petitioner’s direct ancestors could not be overlooked.
Highlighting the merit in the petitioner’s claim, the division bench observed:
“In this case, the petitioner projects that her grandfather was registered as an Indian citizen, and her projected uncle was also declared not to be a foreigner by the Foreigners Tribunal. Under such circumstances, the court is of the considered opinion that the petitioner deserves a chance to prove her contention.”
The court acknowledged that the burden of proving citizenship remains on the petitioner under the law, but concluded that she must be given a fair opportunity to discharge this burden before the tribunal.
The Decision
The High Court remanded the matter back to the Foreigners Tribunal for a fresh determination, providing the petitioner with a single opportunity to prove her stand.
However, the High Court made this relief strictly conditional. The setting aside of the ex-parte opinion is subject to the petitioner appearing before the tribunal within a period of 30 days from the date of the order.
The court clarified the strict timelines and consequences of non-appearance, stating:
- If the petitioner fails to appear within 30 days, the High Court’s order will stand automatically recalled on the 31st day.
- In the event of non-appearance within the allowed time, the order shall stand lapsed by efflux of time, and the original ex-parte opinion of 2010 declaring her a foreigner will stand instantly revived and restored.
