“Non-application of mind”: Gauhati High Court on Assam resident declared foreigner
The Gauhati high court has overturned a foreigners’ tribunal’s decision that an 85-year-old Gorkha resident of Assam was an illegal immigrant. The foreigners’ tribunal had said that Jagat Bahadur Chetri was an illegal immigrant because he was first labelled a “doubtful voter,” or D-Voter. The high court told the election department to find the person who put Chetri in the D-Voter category and make him pay 10,000.
A bench of justices, Achintya Malla Bujor Barua and Robin Phukan, said that an election official “did not apply his mind” when a petition was filed in 2019.
“If Chetri was born in 1937 and his birthplace is Dibrugarh, and there is no evidence that after his birth, he moved to the specified territory (Bangladesh) and then came back to Assam after March 25, 1971, we are of the opinion that the ERO (electoral registration officer) did not apply his mind at all,” the high court said in an order on Monday.
Chetri was put on the electoral rolls as a D-Voter because the ERO for the Dispur assembly seat made a note about him that made people question his citizenship. Even though an officer from the geology and mining department of Assam checked on the spot and found that Chetri was born in 1937 in Dibrugarh, Assam, this was still done.
People who moved to Assam after March 25, 1971, when Bangladesh was made, are considered illegal immigrants unless they can show that they are not. On electoral rolls, people who are thought to be foreigners are also marked as “D-Voters.”
In 2000, Chetri was charged under the now-defunct Illegal Migrants (Determination by Tribunals) Act, and in 2011, he was charged with being a D-Voter at the foreigners’ tribunal of the Kamrup (Metropolitan) district.
It wasn’t until the high court hearing that it came out that Chetri had been in the Indian Army for 38 years, from 1963 until 2001, when he retired. He worked as a civilian defence worker at the 14 Field Ammunition Depot of the Indian Army in Satgaon, which is part of the Narengi army cantonment in Guwahati.
The high court said that the ERO’s reference was “not maintainable in law” and also threw out the foreigners’ tribunal’s decision from 2012 that he was an illegal immigrant.
“However, for causing inconvenience to the petitioner (Chetri) without any good reason and without any thought, the ERO of Dispur assembly constituency is ordered to pay the petitioner Rs. 10,000,” the order said.
The high court ruled that the cost will be paid by Assam’s election office. The person who was the ERO of Dispur at the time the reference was made may have to pay the cost back.
The order also said, “It is also provided that the petitioner shall be entitled to all the rights and privileges as an Indian citizen as may be allowed by law.”