Gauhati HC quashes order of Assam tribunal declaring person foreigner
Guwahati High Court

Guwahati: An order by a foreigners’ tribunal, which had about four and half years back declared a resident of Assam a foreigner, was on Tuesday set aside by the Gauhati High Court based on the observation that the tribunal did not take note of the material on record while passing the order.

The tribunal had in June 2018, declared Ali a foreigner “who had entered the state of Assam subsequent to March 24, 1971”.

The petitioner, Md. Jamir Ali, was referred to the Foreigners Tribunal 1st at Nagaon for a determination as to whether he is a person who had entered India after March 24, 1971, subsequent to which a case, FT case number 252/2009, was registered.

In reference, Ali had examined his mother Haleman Nessa, who was about 80 years at the time of rendering the evidence. She in her deposition stated that Ali was her son and her family members, including the children, were all Indians. 

Nessa further said that no other case questioning the citizenship was pending against her family members.

Subsequent to the disposition of the petitioner’s mother and the other materials on record, a division bench of Justice Achintya Malla Bujor Barua and Justice Arun Dev Choudhary established a link with Ali’s mother and father and therefore he was pronounced not a foreigner.

“As we have arrived at the clear conclusion that the petitioner has established his link with Abbas Ali whose name appeared in the voters’ list of 1965 of Goroimari village and the materials through which the link was established have not been taken note of by the learned tribunal, we accordingly, set aside the order/opinion dated 29.06.2018 in FT Case No. 252/2009 of the Foreigners Tribunal 1st at Nagaon, Assam and declare that it cannot be held that the petitioner is a foreigner who had entered the State of Assam subsequent to 24.03.1971,” court said.

The court said a link is established to the extent that the petitioner’s mother in her deposition stated that she had shifted to a village, Shillongoni, after the death of her husband along with her three children namely Rustom Ali, Jamir Ali and Sahar Ali.

“The voters’ list of 1993 of village Shillongoni shows the name of the mother of the petitioner Haleman Nessa, showing her husband to be Abbas Ali as well as that of his elder brother Rustom Ali showing his father to be Abbas Ali and that of the petitioner again showing his father’s name to be Abbas Ali,” the court said.

The court further said the evidence of the petitioner’s mother had not been controverted by the state authorities in cross-examination before the tribunal so as to dispute her claim that the petitioner was her son whose father died while he was still in the womb.

“Upon perusal of the order/opinion of the learned tribunal it is noticed that the aforesaid materials on record have not been taken note of while declaring that the petitioner is a foreigner who had entered the state of Assam subsequent to 24.03.1971,” the court said while quashing the tribunal’s order.

Section 6A of the Citizenship Act, which was added in 1985, as a result of an amendment in support of the Assam Accord, had been the subject of arguments in the Supreme Court, challenging its constitutionality. 

According to the provision, persons arriving in Assam on or after January 1, 1966, but before March 25, 1971, from certain territories — including Bangladesh in 1985 — and have since become residents of Assam are required to register for citizenship under Section 18.

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