Supreme Court sets aside ex parte foreigner declarations for 27 Assam residents

The Supreme Court has set aside 27 ex parte orders declaring individuals as foreigners in Assam. Remanding cases for fresh adjudication, the court ruled that citizenship determinations cannot be mechanical and must satisfy constitutional requirements of fairness

New Delhi: The Supreme Court on Monday set aside ex parte opinions passed in 24 Foreigners Tribunal and erstwhile Illegal Migrants (Determination) Tribunal cases in Assam, holding that declarations of a person as a foreigner cannot rest on a mechanical adjudication without ensuring a fair opportunity of hearing and meaningful consideration of the material on record.

A bench of Justices Vikram Nath and Sandeep Mehta remanded all the matters to the competent Foreigners Tribunals for fresh adjudication, while granting the proceedees one final opportunity to establish their claim to Indian citizenship.

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The apex court directed the appellants to appear before the Foreigners Tribunals concerned within four weeks and permitted them to file written statements, documentary evidence and affidavits in support of their citizenship claims.

The Tribunals have been requested to decide the references afresh, preferably within six months from the date of the appellants’ appearance.

Setting aside the judgments of the Gauhati High Court as well as the corresponding opinions of the Foreigners Tribunals and erstwhile IMDT Tribunals, the Justice Vikram Nath-led Bench clarified that it had not examined the merits of any individual’s citizenship claim.

“The determination of such status must be made through a process which is fair, lawful and reasoned,” the Supreme Court said, adding that while the statutory burden under Section 9 of the Foreigners Act, 1946 remains on the proceedee, “the remand being directed by this Court is not intended to dilute that burden”.

Highlighting the serious consequences flowing from a declaration of foreigner status, the bench observed that an ex parte proceeding “may dispense with the participation of the absent party, but it does not dispense with objective consideration and meaningful adjudication by the Tribunal”.

“It does not permit the Tribunal to treat absence of the proceedee as a substitute for examination of the material placed before it,” the judgment said, adding that Section 9 of the Foreigners Act “does not authorise a mechanical declaration”.

“The existence of a statutory burden under Section 9 of the 1946 Act cannot be read to mean that the Tribunal is relieved of its own obligation to conduct a lawful adjudication. 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,” the judgment said.

The apex court said that even where a proceedee fails to appear despite service of notice, the Foreigners Tribunal continues to function as a quasi-judicial forum and must satisfy itself that notice was duly served, the “main grounds” of the allegation were disclosed, the state’s evidence was examined, and reasons were recorded before returning its opinion.

Referring to constitutional safeguards, the Justice Vikram Nath-led Bench said that Articles 14 and 21 protect “any person” and “no person”, respectively, and are not confined to Indian citizens. “A person proceeded against before a Foreigners Tribunal may ultimately fail to establish Indian citizenship, but the process by which such determination is made must still satisfy the constitutional requirements of fairness, reasonableness, and non-arbitrariness,” it observed.

The top court further held that while the state has a legitimate interest in identifying persons who are not entitled to Indian citizenship, such determination cannot rest on a mechanical or one-sided process. “The serious consequence of being declared a foreigner follows from an adjudication which satisfies the requirements of the 1946 Act, the 1964 Order, and the constitutional mandate of fairness,” the judgment said.

Pending fresh adjudication, the Supreme Court directed that no coercive action will be taken against the appellants on the basis of the earlier opinions that have now been set aside, provided they appear before the Foreign Tribunals within the stipulated period and cooperate with the proceedings.