Foreigners Act | Authorities Cannot Randomly Ask People To Prove Indian Citizenship On Mere Suspicion Without Sharing Any Materials: Supreme Court

The Supreme Court on Thursday held that the authorities cannot randomly accuse people of being foreigners and initiate investigation into a person's nationality without the existence of material basis or information for suspicion.

Setting aside the declaration given by a Foreigners Tribunal in Assam in 2012 (as affirmed by the Gauhati High Court in 2015) that the appellant was a foreigner, the Supreme Court expressed dismay at the casual manner in which the authorities initiated proceedings on mere suspicion without any material.

"First, it is for the authorities concerned to have in their knowledge or possession, some material basis or information to suspect that a person is a foreigner and not an Indian”, the court held, directing that a copy of this judgment be sent to all tribunals constituted under the Foreigners (Tribunal) Order, 1964.

A bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah overturned a judgment by the Gauhati High Court, which had affirmed the decision of the Foreigners Tribunal, Nalbari, declaring the one Md. Rahim Ali a foreigner.

“The question is that does Section 9 of the Foreigners Act empower the Executive to pick a person at random, knock at his/her/their door, tell him/her/they/them 'We suspect you of being a foreigner.', and then rest easy basis Section 9?..." the Court wondered.

The Court noted that the originating point of the inquiry was SP(B) Nalbari's direction to the Sub Inspector on 12.05.2004.

"The pleadings and the record are silent as to what was the basis of the S.P. (B) Nalbari's direction? What materials or information had come to his knowledge or possession that warranted his direction? Obviously, the State cannot proceed in such manner. Neither can we as a Court countenance such approach”, the court stated.

Burden to prove citizenship will shift to the person only if materials are intimated

As per Section 9 of the Foreigners Act 1946, the burden of proof is on the person who is proceeded against.

In this regard, the judgment authored by Justice Amanullah stated :

"Even for the person to discharge the burden statutorily imposed on him by virtue of Section 9 of the Act, the person has to be intimated of the information and material available against him, such that he/she can contest and defend the proceedings against him."

Clarifying that that strict proof of such allegation has to be given to the accused person at the initial stage, the Court added :

"However, under the garb of and by taking recourse to Section 9 of the Act, the authority, or for that matter, the Tribunal, cannot give a go-by to the settled principles of natural justice. Audi alteram partem does not merely envisage a fair and reasonable opportunity of being heard. In our opinion, it would encompass within itself the obligation to share material collected with the person/accused concerned. It is no longer res integra that principles of natural justice need to be observed."

Background facts

The Tribunal on March 19, 2012 had declared the appellant Md.Rahim Ali a foreigner under Section 9 of the Foreigners Act, 1946, on the ground that he failed to prove his Indian nationality.

The appellant claimed that his parents' names appeared in the voter lists of 1965 and 1970 for Village Dolur Pather, under Bhabanipur Legislative Assembly Constituency in Assam. He said that he was born in the same village, and his name, along with his family members, appeared in the 1985 voter list. After marrying in 1997, he moved to Village Kashimpur, Nalbari district, where his name appeared in the 1997 voter list.

The case against the appellant began in 2004, for alleged illegal migration from Bangladesh post March 25, 1971, the cutoff date as per section 6A (Special provisions as to citizenship of persons covered by the Assam Accord) of the Citizenship Act.

The investigating officer, Sub-Inspector Bipin Dutta, reported that the appellant failed to provide documentary evidence of entry into India before January 1, 1966. The appellant appeared before the tribunal on July 18, 2011, seeking time to file a written statement, which he couldn't submit due to health issues. Despite obtaining a medical certificate indicating his illness, the tribunal declared him a foreigner in an ex-parte order on March 19, 2012.

The High Court stayed the tribunal's order on June 6, 2012, thus preventing his deportation. However, on November 23, 2015, the High Court dismissed the writ petition, affirming the tribunal's order.

Grave miscarriage of justice

The Supreme Court observed that a grave miscarriage of justice occurred in the case. The court highlighted the absence of material evidence, except “bald allegations” to justify the investigation initiated by the Superintendent of Police, Nalbari. “It is also not known as to who, if any person, had alleged that the appellant had migrated to India…”, the court added.

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.

“Ipso facto just an allegation/accusation cannot lead to shifting of the burden to the accused, unless he/she is confronted with the allegation as also the material backing such allegation. Of course, at such stage, the evidentiary value of the material would not be required to be gone into, as the same would be done by the Tribunal in the reference. However, mere allegation, that too, being as vague as to mechanically reproduce simply the words which mirror the text of provisions in the Act cannot be permitted under law.”

The court highlight 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. In the present case, the authorities have not been able to prove either, the court noted.

“Another possibility is that if the foreign country refuses to accept the foreigner, he would be rendered stateless, and languish for the remainder of his life in confinement”, the court added, highlighting the impact on rights of an individual under Article 14 and 21 of the Constitution.

The court noted that the appellant provided documents indicating his and his parents' presence in India before March 25, 1971. The tribunal dismissed these documents due to minor discrepancies in spelling and dates. The Supreme Court pointed out that such variations are common in electoral rolls and government records and cannot be used to declare someone a foreigner.

The Supreme Court set aside the Gauhati High Court's judgment and the Foreigners Tribunal's order.

Also from the judgment - Indian Citizenship Should Not Be Doubted Due To Minor Variations In Name Spellings In Electoral Rolls Or Govt Records: Supreme Court

Case no. – Diary No. 20674 of 2017

Case Title – Md. Rahim Ali @ Abdur Rahim v. State Of Assam & Ors.

Citation : 2024 LiveLaw (SC) 462

Click Here To Read/Download Judgment