SARIFUL ISLAM Vs. UNION OF INDIA

JUDGEMENT

(1.) The common thread in the present bunch of writ petitions is on the question as to whether a proceeding before one Foreigners' Tribunal can be transferred to another Foreigners' Tribunal in exercise of powers under Article 226 of the Constitution of India. Noticing the primary prayer made in the writ petitions, (i) WP(C) 2780/2019 relates to Case No. FT/SVR/12/17 with prayer for transfer of proceeding from the Foreigners' Tribunal, Jorhat, to the Foreigners' Tribunal at Dhing, in the district of Nagaon; (ii) WP(C) 826/2019 relates to F.T. Case No. 188/2015 and transfer is sought from Foreigners' Tribunal No.3, Kamrup (Metro) at Guwahati to the Foreigners' Tribunal at Nagaon; (iii) WP(C) 895/2019 relates to F.T.K(M) Case No. 115/2017 where transfer is sought from the Foreigners' Tribunal No.3, Kamrup (Metro) at Guwahati to the Foreigners' Tribunal, Hailakandi; (iv) WP(C) 925/2019 relates to F.T.K(M) Case No. 114/2017 where transfer is sought from the Foreigners' Tribunal No.3, Kamrup (Metro) at Guwahati to the Foreigners' Tribunal, Hailakandi; (v) WP(C)1720/2019 relates to J.F.T. Case No.72/2007 for transfer of proceeding from the Foreigners' Tribunal, Jorhat to the Foreigners' Tribunal at Bilasipara in the district of Dhubri; (vi) WP(C) 2158/2019 relates to F.T. Case No. 119/2015, seeking transfer from the Foreigners' Tribunal No.2, Kamrup (Metro) at Guwahati to the Foreigners' Tribunal No.3, Dhubri at Hatsingimari; and (vii) WP(C) 2801/2019 relates to F.T.G(D) 480/2010, where transfer is sought from the Foreigners' Tribunal, Jorhat to the Foreigners' Tribunal at Mangaldoi in the district of Darrang.

(2.) The factual aspects for seeking transfer are basically that the proceedings pending before the Tribunals, which are located far away from the permanent place of residence of the petitioners, if allowed to continue or not transferred to their home district or home town, prejudice would be caused as the same creates physical and financial inconvenience to the proceedees to contest the reference cases by presenting witnesses for examination, who are various authorities and persons hailing from the native place, towards discharging their burden as not being foreigners, as required of them under section 9 of the Foreigners Act, 1946. In WP(C) 1720/2019 the ground urged is that the petitioner, as the proceedee, is unable to attend the Tribunal at Jorhat as he has to travel from Dhubri district and, that too, when his health is deteriorating due to old age ailments and he is suffering from loss of vision of both eyes. The legal aspects addressed are that access to justice being a basic and inalienable human right and a facet of right to life guaranteed under Article 21 of the Constitution of India, the Tribunal dealing with the citizenship status of the petitioners must be reasonably accessible in terms of distance and the petitioners' access to the adjudicatory process must be affordable. In this regard, heavy reliance is placed in the case of Anita Kushwaha Vs. Pushap Sudan, reported in (2016) 8 SCC 509. Also, that the Foreigners' Tribunals, which are created under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, are unlike other Tribunals created under Article 323A and 323B of the Constitution of India. The Foreigners' Tribunals are more like Courts of Executive Magistrates, where opinion is rendered in a summary procedure, and cases before it can be transferred. It is submitted that the provisions of section 24 of the Code of Civil Procedure, 1908 cannot create any embargo in the transfer of a proceeding from one Foreigners' Tribunal to another. Further, that transfer of proceeding will not prejudice the State but would rather act to the disadvantage of the proceedee and their witnesses, if not allowed. Lastly, the power to transfer a proceeding from one Tribunal to the other is available under Article 226 of the Constitution of India.

(3.) To answer the issue arising in this bunch of writ petitions and whether the prayer made therein can be entertained, we may discuss the relevant laws relating to the special provisions as to citizenship of persons covered by the Assam Accord, the law providing for the constitution of the Foreigners' Tribunals and its powers and jurisdiction, having regard to the Citizenship Act, 1955 (in short "Act of 1955"), the Citizenship Rules, 2009 (in short "the Rules of 2009"), the Foreigners Act, 1946 (in short "Act of 1946"), the Foreigners (Tribunals) Order, 1964 (in short "1964 Order ") and law laid down by the Supreme Court relevant to the issue in hand.