Supreme Court To Hear Challenge To Ex-Parte Foreigner Tribunal Orders Declaring Persons As Non-Citizens

The Supreme Court yesterday agreed to hear the Special Leave Petition filed by two persons, who claim that they are Indian nationals but were declared as foreign nationals by the Foreigners Tribunal ex-parte despite having documents in their favour.

A bench of Justices Sudhanshu Dhulia and Ahsanuddhin Amanullah was hearing SLPs filed by one Abdul Subhan and Ajbahar Ali, who have been ex-parte declared as foreigners by The Foreigner Tribunal. 

As per Abdul Subhan's pleas, through 'Sarkari Goanburah' some doubtful voters of a village were asked to assemble with relevant citizenship documents on March 18, 2005. The petitioner there could not prove his citizen and he was reported to be a foreigner and referred to the Foreigners Tribunal. 

On March 9, 2009, petitioner 1 filed written statements before the tribunal wherein he submitted that he was born in India and that his father's name appeared in the National Registration of Citizens (NRC) 1951 as well as 1966 voter's list. However, on December 31, 2022, the tribunal adjudicated him to be a foreigner on the grounds that he did not appear before the tribunal to prove his documents. 

Further, the SLP states that Petitioner 1 filed a writ petition before the Gauhati High Court challenging the ex-parte order of the tribunal on December 31, 2012. But the same was dismissed on February 17, 2014. Thereafter, a writ appeal was also dismissed in 2015.

In Ajbahar's plea, it is stated that he has been branded as a foreigner through an ex-parte order dated February 11, 2016, by the Foreigner's Tribunal of Bongaigoan, Assam, despite the fact that he is an Indian national by birth.  His father's and grandfather's names are in the 1951 NRC list and in the 1966 voter's list. Whereas, his mother's name appeared in the 1970 voter's list and his own name appeared in the voter's list of 1997, 2005, 2011, and 2016.

Aggrieved, petitioner 2 filed a writ petition challenging the tribunal's order before the Gauhati High Court, which was dismissed on September 6, 2019. Before the Supreme Court, he stated that the tribunal declared him a foreign national based on the fact that his father's name was misspelt in some documents.

Both petitions also raise the conditions of the detention camps and the inhumane treatment meted to those confined.

Advocate-on-Record Arup Banerjee (for Petitioners) at the outset apprised the bench of the facts of the first petitioner's case. He said: "I may not appear, but the document is there. At least, they should have applied mind to the documents. Straightaway catching anybody and saying you are a foreigner. What foreigner, Milord? My father's name is in NRC 1951.."

On this, Justice Amanullah asked: "Has the tribunal noted the written statements?"

In July, a bench of Justices Vikram Nath and Amanullah had called out the authorities for initiating proceedings of the tribunal on mere suspicion that the petitioner in question in the case was a foreign national. 

Section 9 of the Foreigners Act requires the person accused of being a foreigner to prove their nationality. However, the court emphasised that the accused has to be intimated the material against him so that he can defend himself.

The court highlighted that a person declared to be a foreigner is liable to be detained and deported to the country of origin. For this, there must be material to prove the person is not an Indian national, and establish his country of origin. However, the authorities have not been able to prove either, the court noted.

Counsel continued: "Both these arises out ex-parte orders. We have seen in the first case, the petitioner did not appear before the tribunals for 2 years and 7 months. In the second matter, the petitioners did not appear for 4 years."

However, Justice Amanullah asked for a clarification: "Before, the passing of the orders, were written statements and all those facts before the tribunal. Yes or no? Appearance does not matter. Has the written statement discussed in the final order?"

To this, the counsel responded: "I will have to say, only the written statement not discussed in the final order."

He added: "But today, the petitioner is relying on five voter lists that were not before the tribunal." 

Justice Amanullah again asked if the petitioners were provided with show cause and materials that were against him.

AoR Banerjee interjected and said: "More than 3 years, they are in concentration camps" with inhumane conditions.

On this, Justice Dhulia questioned why he was calling it as "concentration camps". To this, the petitioner's counsel clarified that he was referring to it as detention camp and that the detainees have to survive merely on Rs.20.

State's counsel concluded by stating that ultimately the tribunal is the fact-finding authority. He added that one of the voter's list relied by him is a typed list and there is nothing else on record. 

Justice Dhulia remarked: "You know, the entire presumption is against him. He has to prove that he is not a foreigner. Just see the law. Law is harsh but at least you should be fair in dealing with it. "

The Court will hear the matter on December 5 as the parties need to get the requisite documents. 

Case Details: AJBAHAR ALI v UNION OF INDIA AND ORS., SLP(C) No. 9745/2017 & ABDUL SUBHAN v UNION OF INDIA AND ANR.,Diary No. 27282-2017