4. Violations of Natural Justice and the Right of Due Process 4.2.8 Summoning of Witnesses The Foreigners (Tribunals) Order, 1964 grants the FTs the powers of a civil court, including the authority—under the Code of Civil Procedure (CPC)—to summon and examine witnesses on oath.343 Yet, FTs routinely fail to exercise this power, leaving defendants to secure the presence of witnesses themselves. This practice sharply diverges from ordinary legal procedure: under the CPC, courts are required to issue summons upon a party’s request to ensure witness attendance.344 Lawyers have reported that tribunals, even upon filing of applications to issue summons, refuse to issue summons to official witnesses including inquiring authorities as well as Gaonburahs and Gaon Panchayat Secretaries. Defendants are themselves asked to produce witnesses, and failure to do so results in the FT drawing adverse inferences against the defendants as well as non-consideration of important evidentiary documents. This approach has serious consequences for defendants proving their case before FTs. First, unlike official summons, defendants’ individual requests to witnesses are non-binding and it is entirely dependent upon the witnesses to attend. Moreover, in the absence of an official summons, witnesses also often charge money to appear before the FT, which is burdensome and compromises the defendant’s case. As one of the AGPs reported in an interview, in many cases, defendants have had to pay official witnesses to appear before the FT and even cover their travel and accommodation expenses. AGP: “There were no prosecution witnesses, and it seems like no other witnesses requested to appear by the proceedee. It however has to be incumbent upon the Member to call upon the 110 issuing authority in case of proving documents, as it is well within their powers to do so. Instead however it is seen most times that Members don’t entertain prayers to send official summons, but ask the proceedee themselves to call such authorities. That becomes almost impossible, since more often than not the proceedee cannot compel attendance but can only request them to come if they have access to them.” Consequently, many defendants are unable to discharge their burden since official witnesses do not show up to depose about the contents of documents they have issued, leading to the FT summarily dismissing these documents in their entirety (see Chapter §4.2.10). Not issuing of official summons has also compromised the lawyer’s ability to make legal arguments. In instances where the defendant wants to challenge a faulty inquiry, non-issuance of summons to the inquiring authorities means that they have no avenue to cross-examine the officer and successfully prove their case. As one lawyer explained, when they asked the Member to summon the Inquiry Officer for cross examination, the Member refused to do so, saying it is not their “lookout”. As a result, the lawyer had no choice but to give up on challenging the enquiry before the Tribunal. 343 344 Foreigners (Tribunals) Order 1964, para 4. Code of Civil Procedure 1908, Order XVI rule 1; State of Punjab v. Naib Din (2001) 8 SCC 578 [8].