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The Supreme Court last week declared Assam resident Md Rahim Ali a citizen of India, throwing out the decision of a Foreigners’ Tribunal in the state. The historic judgment written by Justice Ahsanuddin Amanullah for himself and Justice Vikram Nath also clarified the law in cases of allegations of foreign nationality, and discharge of the burden of proof by the person under scrutiny.
Ali was born in Dolur village in Barpeta district, and his parents’ names appeared in the voters’ list of 1965. A document shows his parental residence in Dolur prior to 1965. His own name, along with his siblings’, appeared in the voters’ list of 1985.
After getting married in 1997, Ali moved to Kashimpur in Nalbari district, and his name was included in the voters’ list of that year, along with his new residential address.
In 2004, on the instruction of the superintendent of police of Nalbari, one S-I Bipin Dutta inquired into Ali’s nationality. Since Ali could not produce documentary evidence of his nationality within a week, a case was registered against him.
Because of minor discrepancies in spellings and dates in the documents produced by Ali, the Foreigners’ Tribunal (FT) passed an ex parte order declaring him a foreigner after he failed to appear, subsequent to a first appearance before it, due to ill health.
After the High Court upheld the declaration, the Supreme Court asked the FT to examine the documents. This time, on the apex court’s orders, the FT gave Ali a hearing, but again declared him a foreigner, holding that he had entered India illegally on or after the cut-off date of March 25, 1971.
Section 9 of The Foreigners Act, 1946, puts the burden of proof on the person who is alleged to be a foreigner. However, as the SC said in its judgment, “the question is that does Section 9…empower the Executive to pick a person at random,…tell him/ her/ they/ them ‘We suspect you of being a foreigner’, and then rest easy basis Section 9?”
The SC noted that there was not “an iota of evidence” against Ali, and no information or material was on record about who had filed the complaint and on what basis, and from where specific information about him being from Mymensingh in Bangladesh had come.
While the burden of proof may be on the accused under the Foreigners Act, this burden is to be discharged only after the state has shared the material on which the allegation is founded, the court said. The supply of this material is an integral part of the classic rule of natural justice, audi alteram partem, i.e., no one shall be condemned unheard.
“In the absence of the basic/ primary material, it cannot be left to the untrammelled or arbitrary discretion of the authorities to initiate proceedings, which have life-altering and very serious consequences for the person, basis hearsay or bald and vague allegation(s),” the court said in a strongly-worded paragraph of the judgment.
Relying on the five-judge verdict of the SC in Mukesh Singh vs State (2020), the court said that even in cases of a reverse burden of proof, the initial burden, which exists on the prosecution, must be satisfied.
As per the judgment in Noor Aga vs State of Punjab (2008), some basic facts must first be proved by the prosecution even in cases of reverse burden of proof. It is a settled principle of criminal jurisprudence that the more serious the offence, the stricter is the degree of proof.
The judgment will alleviate the anxieties of many people who, following the enactment of The Citizenship (Amendment) Act, 2019, and the proposal to have a nationwide National Register of Citizens (NRC), are worried about minor spelling mistakes in their and their parents’ names, or similar discrepancies in dates.
“Variation in name spelling is not a foreign phenomenon in preparation of the Electoral Roll,” the SC said. “A casual entry by the enumerators when noting and entering the name(s) and dates of birth(s) as also the address(es)…while making preparatory surveys…cannot visit the appellant with dire consequences. Moreover, in our country, sometimes a title is prefixed or suffixed to a name such that the same person may be known also by one or two aliases,” it said. “The Tribunal seems to have been totally oblivious to all this.”
Foreigners’ Tribunals were established under The Foreigners Act, a colonial legislation that preceded the Constitution of India, and which was meant to deal with foreigners rather than citizens.
They were established in 1964 by an executive order of the Home Ministry, even though under Article 323B of the Constitution, tribunals may be established by “the appropriate legislature” by “law”.
Under Section 2(a) of the 1946 Act, “a foreigner means a person who is not a citizen of India”. Thus, it will be applicable only to persons against whom there is strong evidence of being a foreigner in the sense that they were caught while entering India, or they were in possession of a passport of another country.
However, about 3 lakh people in Assam were declared Doubtful Voters in 1997 and in subsequent years by low-ranked government officials without any inquiry or notice. They were excluded from the Assam NRC, and they now face the FTs.
Although Paragraph 3(1) of Foreigners’ Tribunal Order of 1964 mandates that notices shall mention the “main grounds”, notices issued by FTs generally do not mention any ground, and people have to defend themselves without knowing the charges.
Until March 2019, as many as 1.17 lakh people had been declared foreigners, including 63,959 ex parte declarations. The judgment by Justices Amanullah and Nath could have an immediate positive bearing on thousands of other cases pending with the FTs.
Prof Faizan Mustafa is Vice Chancellor of Chanakya National Law University, Patna. Views are personal.
