Declared foreigners in Assam have limited rights compared to citizens, maintaining basic rights under Article 21 but lacking access to benefits meant for citizens.

JUDGMENT :

A.M. Bujor Barua, J.

Heard Mr. N Haque, learned counsel for the petitioner in WP(C)No.638/2018. Also heard Mr. D Mazumdar, learned Additional Advocate General assisted by Mr. D Nath, learned Senior Government Advocate for the State of Assam, Ms. A Verma, learned counsel for the authorities in the Home and Border Areas Department, Mr. RKD Choudhury, learned DSGI for the Ministry of Home Affairs Government of India, Mr. AI Ali, learned counsel for the Election Commission of India and Ms. U Das, learned Government Advocate for the respective Deputy Commissioners.

2. While hearing the learned counsel for the writ petitioner on its own merit, a probable situation had arisen that there is a possibility that on the merits of the individual writ petitions, where the writ petition is against the opinion rendered by the Foreigners’ Tribunals concerned on the matters as to whether the writ petitioner is Indian citizens under the law or they are foreigners who entered the State of Assam from the specified territory on or after 25.03.1971, the petitioners may be declared to be foreigners.

In such situation, a further question for determination has also arisen that if a given person is declared to be a foreigner who had entered the State of Assam from the specified territory on or after 25.03.1971, what would be his rights and entitlements for the period for which he will remain in India, more particularly, in the State of Assam, as well as, what rights and entitlements which otherwise are available to a citizen of the country would not be available to such declared foreigner.

3. As the determination of the rights and entitlements as may be applicable to a declared foreigner, vis-a-vis such rights and entitlements which otherwise are available to a citizen of a country, but not to a declared foreigner, may have a far reaching consequence in many such pending proceedings where a petitioner-proceedee would be required to be declared to be a foreigner, we also gave liberty to any such learned counsel who may have appeared in such pending proceedings to also make their submissions on the issue so that a more comprehensive determination can be made. In such circumstance, Mr. HRA Choudhury learned Senior Advocate, Ms. D Ghosh learned counsel and Mr. AW Aman, learned counsel who appears for the litigants in such proceedings came forward to make their respective submissions.

4. In WP(C)No.638/2018 the petitioner-proceedee Kuddus Ali was referred to the Foreigners Tribunal No.2 Barpeta for rendering an opinion as to whether the petitioner entered the State of Assam on or after 25.03.1971, resulting in the registration of F.T.(2nd Tribunal) Case No.1057/2017. The Tribunal rendered an opinion dated 19.12.2017, declaring the petitioner to be a foreigner who entered the State of Assam from the specified territory.

5. In the writ proceeding, the petitioner relies upon the voters list of 1985, Annexure-3(a) of village Nichuka, P.S. Sarbhog, Mouza Damaka Chakabousi, in the present Barpeta district, which contains the name of Soroj Uddin, son of Abed at Sl.No.600, Rahiman Nessa wife of Soroj at Sl.No.601, Mamud Ali son of Soroj at Sl.No.602, Halima Khatun wife of Mamud at Sl.No.603 and all are shown to be residing in the same House No.192. As per the Annexure 3(b) at page 29 of the writ petition, the petitioner relies upon the voters list of 1989 of village Nichuka, P.S. Sarbhog, Mouza Damaka Chakabousi in the present Barpeta district, which contains the name of Aakash Ali son of Samsher at Sl.No.709 and that of Jahura Khatun wife of Aakash at Sl.710 and both are shown to be residing in the same House No. 232. But the voters list available on the case record, at page 17, which is a voters list of 1989 of village Nichuka, P.S. Sarbhog, Mouza Damaka Chakabousi in the present Barpeta district contains the name of Faruj Uddin, son of Abed at Sl.No.711,