REPORT OF TLA LAWYER MS. NAMGYAL TSEKEY’S OFFICIAL TRIP TO
DEHRADUN TO FILE APPEAL BEFORE THE ADDITIONAL DISTRICT &
SESSION JUDGE (SPECIAL) POCSO DEHRADUN
Appeal No.127/2017 (4.9.2017- 17.9.2017)
Case: A Tibetan school student who was born in Nepal, was charged for using
a forged birth certificate with birthplace as India while applying for new
Registration Certificate (RC) under Foreigners Act . The case was initiated against
the child in Juvenile Justice Board (JJB), Dehradun U/S: 420/466 /468/471 IPC
and S-14 of the Foreigners Act, for illegal entry and illegal stay without RC .
Background:
1 His parents came from Tibet and stayed for several years in Nepal before
finally departing to India. His parents did not know about the Special Entry
Permit (SEP) which was mandatory for Tibetans to enter India. 2
The child was left by his divorced parents in the school under the custody of
XXX school at the very young age, and they left for Austria.
3 He was young and unaware that RC is required as soon as possible after his
entry to India.
4 Infact he was told that he should have RC when he attains the age of 17
with the mandatory document i.e birth certificate .
So, while the matter was pending before the JJB , an appeal was made to the
Ministry of Home Affairs (MHA), New Dellhi for immediate help as the power to
grant RC lies with the Central Government. Thus the representation was made
through the Tibetan legal Association (TLA) on behalf of the boy and initiated
the formal Application for RC through FRO Dehradun submitted on 24. 5.2017
and official follow up representation on behalf of CTA though the Bureau office of
H.H the Dalai Lama, New Delhi was made on 30.5.2017.
▪ 23. 8.2017 ( Judgment of JJB)
The JJB, Dehradun in its judgment dated 23.8.2017 acquitted the boy on charges
under section 466 and 468 for forgery of the birth certificate but found him to be in
violation of the section 420 /471 for wrongful delivery and use of forged
document, and section 14 of the Foreigners Act for illegal entry and staying in
India without RC since many years. Consequently, the boy was given an ultimatum
of 45 days to remain in India, during which he would be staying at the Place of
Safety in Roshnabadh Haridwar. Meanwhile, he needed to obtain RC/stay-permit
by approaching the Ministry of Home affairs, Central Government or FRRO
Dehradun, failing to do so within the stipulated period would result him deported
to Nepal .
1 iv) The JJB in its judgment para 77 states:
“That in compliance of principle of the conventional international laws,
the defense side principally stated that on the humanitarian ground, the child may
be granted the status of a refugee and be given a permission to stay in India.
The interpretation of conventional international law and to issue direction to the
central government or any competent authority to grant stay permit to any
foreigner is outside the jurisdiction of Juvenile Justice Board. It is a policy matter
to grant stay permit to a Tibetan refugee and issuance of Registration Certificate
as a Tibetan refugee . The power to take such decisions lies with the central
government or FRO Dehradun.”
Administrative Appeal through CTA : TLA Lawyer Ms. Namgyal Tsekey
updated the case to Department of security, CTA, and rushed to Delhi on
29.8.2017 – 31.8.2017 with the intent to approach MHA with an official of the
Bureau office . She updated the final judgment of the JJB with regard to the RC
case to the Secretary of the Bureau office, and as the MHA was shifting to a new
building, Bureau Office made an urgent appeal letter addressed to Mr. Mukesh
Mithal, Joint Secretary,FRO, (MHA) requesting the grant of RC to the said
Tibetan child .
This letter was submitted to the appellate court to show that the RC proceedings
was pending for approval and being followed up.
APPEAL BEFORE THE CHILDREN’ COURT, POCSO, DEHRADUN
4.9.2017 TLA lawyer Ms. Namgyal Tsekey went to Dehradun to Appeal
before the Children’s Court Special , POCSO.
▪ 5. 9.2017 Ms. Namgyal Tsekey approached the FRO Dehradun and
requested them to exercise its power delegated under section 3 of the Foreigners Act,
to which the LIU said the matter had already been submitted to MHA through FRO and the
ultimate power on the matter lies with MHA.
▪ 7. 9.2017 ( Thrusday) Drafted appeal and application along with advocate
Kailash Khanduri who assisted the child in the case No. 250/2015 before
JJB. The appeal stated that the judgment of the lower court did not consider
the Article 21 and 51 of the Indian Constitution which says the foreigners
are entitled to protection of his life and liberty and Article 51(c) of the
Constitution which casts a duty on the State to endeavor to “foster respect
for international law and treaty obligations in the dealing of organized
people with one another” and the Refugee Convention and Convention on
Rights of child was not considered. The appeal also requested for two
months period to obtain RC and to accept the undertaking letter by XX
school for his safe custody till the RC is issued.
▪ 9.2017 ( Friday) The appeal along with the application was duly filed at
10.30 a.m and was accordingly admitted . The Appeal No. 127/2017 was
set for hearing on Monday i.e 11.9.2017
13.9.2017 ( Wednesday) Ms. Namgyal Tsekey and Advocate Kailash Khanduri
appeared for the hearing . The Court agreed to accept the application and allow
the school to take care and custody of the child till he got RC. The court further
summoned for verification of the school as required by law which was done
through the local police chowki.
15. 9.2017 ( Friday)& 16.9.2017
Ms. Namgyal Tsekey appeared for the hearing. The appellate court agreed to
dispose the case .
▪ a) The honorable Madam Judge agreed to close the case and amend the
lower court’s judgment with regard to the quantum of stay at safety place to
the days already spent till now .
▪ b) Further the subjective deportation was extended for a period of two
months .
▪ c) The appellate court in its judgment dated 16.9.2017 amended the
language from the judgment of the lower court “ in case of not obtaining
RC from the MHA or FRO within the stipulated period,” the appellate
judgment states: “if the RC or stay permit is not granted by the MHA or
FRO , in such event, then the child may be deported”. Which means the
FRO or MHA is required to make a conscious decision to grant or not to
grant an RC/stay permit within two months.
▪ d) Thus, the appellate court stayed the subjective deportation for a period of two months.
▪