02, Oct 2018 | Deborah Grey

In a shocking case in Assam, nine children of a deceased couple were forced to run from pillar to post to prove that their dead parents were indeed Indian! However, the Gauhati High Court has now granted them temporary relief. Sunahar Ali and Mojida Khatun, the deceased couple, were posthumously declared ‘foreigner’ by a Foreigners’ Tribunal ex parte. They have nine children whose citizenship is now in question given their parents’ ‘foreigner’ status.

The family hails from Bandarkuna (Part-2) village in Karimganj District. Helal Uddin, one of the sons of Ali and his wife Mojida, claims that his parents were declared D-Voter without any inquiry. The Superintendent of Border Police referred their names to Karimganj Foreigners’ Tribunal 1 on June 30, 1998 under the erstwhile Illegal Migrants Determination by Tribunal (IMDT) Act, 1983. But there was no progress made on the reference. The case was revived in 2006, when it was transferred to Karimganj Foreigners’ Tribunal 2 and assigned a different case number.

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Meanwhile, Sunahar Ali died in 2011. While a notice was served in his name, the son ignored it because the father was dead. The case continued ex parte and Sunahar Ali was declared foreigner vide an ex parte order passed on March 18, 2017. Meanwhile, Mojida’s case was also revived in 2016 when it was transferred to Karimganj Foreigners’ Tribunal 2 and assigned a different case number. Mojida who died on August 12, 2017 was served notice by the FT on July 26, 2018.

Helal Uddin was unaware about the development and only on the basis of the records of the NRC authorities, did he come to know that his deceased father was declared ‘foreigner’. Similarly, on inquiry, the pendency of the proceeding against the deceased mother of the petitioner also came to his knowledge. Immediately thereafter the petitioner filed an application each for substitution of the deceased father and mother in FT. He also appealed for the ex parte order declaring them foreigners be set aside. But when the FT refused to entertain his plea Helal Uddin moved Gauhati High Court.

The HC ruled as follows:

We have given our considered thought and decided that keeping in view the effect which would be prejudicial to the legal heirs of late Sunahar Ali and late Mojida Khatun alias Mojida Khanam in the event a chance is not given to the petitioner, his brothers and sisters to discharge the burden in order to prove the citizenship of their parents, accordingly we direct that the petitioner along with his brothers and sisters shall file an application to that effect whereupon the learned Member, Foreigners’ Tribunal, will pass an appropriate order allowing them to be impleaded as the legal representatives of the deceased procedee in both the proceedings keeping in view the observation made by us. Further considering that an exparte order was passed on 18.03.2017 in F.T. Case No. 250/2015 the same stands set aside. The petitioner along with his brothers and sisters shall be allowed to participate in both the proceedings and file the written statements. Let the petitioner along with his brothers and sisters appear before the learned Tribunal on 28.09.2018 whereafter the learned Member of the Tribunal shall pass necessary order and complete the proceeding within a period of 60 days from the date of appearance of the present petitioner along with his brothers and sisters.”

Thus, not only were Helal Uddin and his siblings given a chance to prove the citizenship of their parents thereby getting the opportunity to protect their own citizenship status, the previous order declaring the father a ‘foreigner’ was set aside.

The entire order may be read here:

This is a landmark judgment and it remains to be seen if this will set a precedent that will empower children and legal heirs of deceased Declared Foreigners (DF) to challenge the FT order against their parents and thereby get an opportunity to assert their own Indian citizenship.

Related:

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Assam man’s wife declared ‘foreigner’, missing for 7 years!