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].
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