Right to Citizenship Cannot Be Resurrected After Six Years of Inaction: Gauhati High Court Denies Writ Against Foreigners Tribunal Order

“Citizenship is a very valuable right and should be zealously guarded. However, if a person does not take steps for safeguarding his interest, he does so at his own peril” – Gauhati High Court warns against invoking natural justice as a cloak for inaction

In a significant ruling Gauhati High Court dismissed a writ petition filed by Ajiran Nessa who challenged a 2019 ex parte order passed by the Foreigners Tribunal, Mangaldai, declaring her a foreigner under the Foreigners Act, 1946. The Court, comprising Justices Kalyan Rai Surana and Rajesh Mazumdar, held that the petitioner’s inaction for nearly six years and failure to diligently pursue remedies rendered her claim legally unsustainable. "The petitioner cannot claim the benefit of procedural leniency at a belated stage," observed the Bench, emphasizing that such conduct defeats the core purpose of the Foreigners Act — detection, determination, and deportation of illegal migrants.

Ajiran Nessa, a resident of Darrang district in Assam, was declared a foreigner by the Foreigners Tribunal in an opinion dated 22.10.2019, based on a reference received from the authorities under IMDT Act provisions. Despite receiving notice of the proceedings, she failed to adduce any evidence. Though she filed a written statement, she remained absent on multiple dates. Her writ petition challenging the order was filed only on 31.07.2025, after an unexplained delay of nearly six years. The Court remarked, “The petitioner, by her own conduct, denied herself the opportunity of being heard.”

“Delay of Six Years Is Fatal — No Continuing Cause of Action Can Be Claimed by the Petitioner”

The Court found the petitioner’s attempt to explain the delay unsatisfactory and vague. Claiming that her lawyer never informed her of the outcome and that she was poor and illiterate, she sought to invoke the doctrine of continuing cause of action. The Court firmly rejected the argument, stating, “In the present case, the petitioner has not been able to demonstrate that there is a continuing cause of action. The cause of action arose on 22.10.2019. Delay is fatal.” The judges pointed out that the certified copy of the Tribunal’s opinion was obtained by the petitioner in February 2022. However, even thereafter, she waited more than three years before approaching the High Court. This conduct, the Court said, “does not reflect any sincere intent to contest the declaration.”

“Natural Justice Cannot Become an Engine of Fraud — It Must Not Be Abused to Thwart Immigration Laws”

Rejecting the plea that the ex parte order was passed in violation of natural justice, the Bench emphasized that Ajiran Nessa had been granted sufficient opportunities. The record revealed that she was served with notice on 26.07.2019, filed her written statement on 02.09.2019, but failed to appear or submit evidence on 13.08.2019, 27.08.2019, 19.09.2019, 24.09.2019, and 16.10.2019. “Despite being given due opportunity to the petitioner to contest the proceedings… she was intermittently absent or her engaged counsel prayed for adjournments,” the Court observed.

Relying on the Full Bench judgment in Moslem Mondal v. State of Assam, the Court reaffirmed that “the right to a fair hearing is not an unqualified privilege. It cannot be permitted to lead to a farcical situation and be an engine for defeating the very object of identification and deportation of foreigners.”

“Burden to Prove Citizenship Rests on the Accused Under Section 9 — State Need Not Establish Nationality”

The Court reiterated the statutory mandate under Section 9 of the Foreigners Act, 1946, that once a reference is made, it is the individual who must prove their Indian citizenship. “The burden of proof lies upon the person against whom the reference is made,” the Court held. The petitioner had not submitted any electoral rolls, NRC documents, or land records to support her claim of being Indian. “Without any substantive material, and having remained silent for six years, the petitioner’s belated attempt to re-open the case cannot be permitted under law,” the Court concluded.

The Gauhati High Court’s verdict reinforces the principle that procedural fairness must be balanced with judicial finality and administrative efficacy. The ruling draws a clear line against the misuse of constitutional remedies to undo concluded proceedings after prolonged silence. “Citizenship may be a fundamental right for those entitled to it, but it cannot be claimed as a divine right in disregard of statutory mandates and timelines,” the judgment effectively declares. The petition was dismissed, and the Court directed that the consequences of the Foreigners Tribunal’s 2019 order shall follow.

Date of Decision: 3 September 2025