5.
Embedding Violations: Role of the Assam’s High Court
In Asmita Khatun v. Union of India (2023),544 the Gauhati High Court was tasked with examining a
petition in which the FT had declared an entire family—Md. Intaz Ali (father), Asmina Khatun (wife),
Md. Jakir Hussain (son), and Musstt. Imrana Khatun (daughter)—to be foreigners. The petitioners
challenged these declarations, raising a fundamental question of law: whether, consistent with
Moslem Mondal, the failure to conduct a lawful inquiry under the Foreigners Tribunal Order 1964
vitiated the proceedings against them. Specifically, they relied on paragraph 97 of Moslem Mondal,
which held that without a proper inquiry, proceedings before the Tribunal are without jurisdiction and
liable to be set aside.
The petitioners demonstrated that the inquiry and reference had been made solely against Md.
Intaz Ali (in WP(C) 8399/2022) and that no inquiry at all had been conducted against the other
three petitioners (in WP(C) No. 3745/2019). They contended that the absence of any investigation
or referral against those individuals fatally tainted the proceedings against them and that the FT’s
opinions were therefore without legal foundation.
Justice Bujor Barua, writing for the bench, departed from settled jurisprudence by reframing the
requirements set out in Moslem Mondal. The Court held that paragraphs 92–97 of Moslem Mondal
permit a more elastic standard: a “fair investigation” would suffice for proceedings under the
Foreigners Act provided that the prospective defendant was given an opportunity during the inquiry to
present their claim to citizenship. Crucially, the Court introduced an additional requirement not found
in Moslem Mondal—that the defendant must cooperate fully with the investigating authority, including
by making their whereabouts known at all times. The judgment suggested that where a litigant fails to
so cooperate, the obligation of the investigating authority to conduct a fair inquiry is deemed satisfied,
even in the absence of any substantive material justifying referral.
This reasoning effectively shifts the burden of ensuring a lawful inquiry from the State onto the
individual—a position at odds with both Moslem Mondal and broader constitutional protections under
Article 21. The Court further distinguished the inquiry requirement under the FT Order 1964 from
the statutory inquiry once mandated under the now-defunct IMDT Act 1983 (struck down in Sonowal
I). It reasoned that the Moslem Mondal standard, grounded in Article 21, was of a different “purport,
166
nature, and extent,” and could therefore be satisfied through lesser procedural safeguards if the
defendant was deemed uncooperative.
Applying this novel standard, the Court found that for two of the petitioners—Md. Intaz Ali and Asmina
Khatun—the investigation requirements had been met because they allegedly did not cooperate with
the investigating authority. On this basis, it refused to set aside the proceedings against them. For
the remaining petitioners, it offered no meaningful engagement with the argument that no inquiry or
referral had ever been made against them at all, allowing the Tribunal’s decision to stand despite this
fatal jurisdictional flaw.
544
WP(C) 3745/2019 tagged with WP(C) 8399/2022 (Gauhati High Court, 28 March 2023).
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