Citizenship can't be determined without fair hearing: Supreme Court quashes ex-parte orders by Assam Foreigners Tribunals

The Supreme Court on Monday held that a person’s citizenship status cannot be determined without a fair, lawful and reasoned process [Sabitri Dey v. Union of India & Ors].

A Bench of Justices Vikram Nath and Sandeep Mehta said that although the State has a legitimate interest in ensuring that only those legally entitled to Indian citizenship are recognised as citizens, that objective cannot come at the cost of procedural fairness.

“The State has a legitimate and compelling interest in ensuring that persons who are not legally entitled to claim Indian citizenship do not secure such status by misuse of process, by false claims or by taking advantage of delays...At the same time, the determination of such status must be made through a process which is fair, lawful and reasoned,” the Court noted.

The observations came in a batch of appeals arising from Assam involving persons (appellants) who had been declared foreigners by Foreigners Tribunals and the erstwhile Illegal Migrants (Determination) Tribunals.

The appellants challenged the judgments of the Gauhati High Court affirming those declarations. Their common grievance was that the proceedings before the tribunals had either been conducted ex parte or had effectively become ex parte, resulting in them being declared foreigners without a full and meaningful opportunity to contest the references.

The Supreme Court noted that although the cases arose from different factual situations, they could broadly be divided into three categories.

The first comprised cases where the persons never appeared before the tribunals despite the tribunals recording service of notice. The second involved cases where the High Court itself appreciated documents while upholding ex parte opinions of the tribunals. The third consisted of cases where the persons had initially appeared before the tribunal but later stopped participating, following which they were declared foreigners.

After examining the statutory scheme under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, the Supreme Court clarified that while Section 9 places the burden on the proceedee to establish that he or she is not a foreigner, that burden does not permit tribunals to mechanically accept the State’s case.

“Section 9 does not authorise a mechanical declaration. It does not permit the reference to be accepted as conclusive merely because it has been made. It also does not permit the Tribunal to treat absence of the proceedee as a substitute for examination of the material placed before it.” it observed.

The Court explained that even where a proceedee does not appear, the tribunal continues to function as a quasi-judicial body and must satisfy itself that notice was duly served, that the main grounds of the allegation were disclosed, that the State has produced material capable of supporting the reference and that its conclusions are supported by reasons.

The Bench further held that these safeguards are rooted not only in the statutory framework but also in Articles 14 and 21 of the Constitution, which protect “any person” and therefore extend even to individuals whose citizenship is under inquiry.

It clarified that the statutory burden under Section 9 remains unchanged and that its judgment should not be understood as conferring any advantage upon persons who ultimately fail to establish their citizenship.

Accordingly, the Court allowed the batch of appeals and set aside the judgments of the Gauhati High Court as well as the corresponding opinions of the concerned Foreigners Tribunals and the erstwhile Illegal Migrants (Determination) Tribunals.

While doing so, it observed that its intervention was intended only to ensure that the grave consequences of being declared a foreigner follow a process that satisfies both the statutory framework and constitutional guarantees of fairness.

The Bench also made it clear that it had not examined the merits of any individual’s claim to Indian citizenship or the authenticity of the documents relied upon by them. Those questions, it said, must be independently decided by the concerned tribunals.

The matters were been remitted to the respective Foreigners Tribunals for fresh adjudication. 

The appellants have been directed to appear before the concerned tribunals within four weeks, following which they will be permitted to file written statements, documents and affidavits of evidence. The State was granted liberty to produce evidence in support of the references.

The Court directed the tribunals to decide the references afresh, uninfluenced by the earlier opinions, preferably within six months.

It further ordered that no coercive steps shall be taken against the appellants on the basis of the earlier opinions that have now been set aside, provided they appear before the tribunals and cooperate with the proceedings.

[Read Judgement]