Facts
- In 2004, a police superintendent in Nalbari, Assam had alleged that one Rahim Ali (henceforth known as the Appellant) had illegally entered the country after 25th March 1971 in the aftermath of the Bangladesh Liberation War. This matter was taken up by the Foreigner’s Tribunal, Nalbari, Assam.
- The Tribunal asked the Appellant to prove that he is indeed an Indian national. However, it dismissed the evidence provided by the Appellant on grounds of spelling mistakes and other minor errors. Furthermore, it was sceptical on whether the Appellant was truly a citizen of India.
- The Appellant appeared before the Tribunal on 18th July 2011 and requested the latter’s permission to file written submissions in his favour. However, the Appellant was unable to file the submissions as he claimed to be seriously unwell.
- On 19th March 2012, the Tribunal ruled that the Appellant had failed to prove that he was an Indian citizen, an act he was duty bound to discharge under Section 9 of the Foreigner’s Act, 1946. It must be noted that the Tribunal’s ruling was delivered through an ex-parte order, which meant that the Appellant was not given a chance to be heard.
- Aggrieved, the Appellant approached the High Court at Guwahati to set aside the order. This was unsuccessful as the High Court upheld the order of the Tribunal. Consequently, he approached the Supreme Court to set aside the order and to declare him as an Indian citizen.
- The Supreme Court in July 2017, upon examining the documents procured by the Appellant, directed the Foreigner’s Tribunal at Nalbari to decide on the nationality of the Appellant. Once again, the Tribunal ruled that the Appellant was a foreigner illegally living in the country and placed the ruling before the Supreme Court.
Issues raised
- What is the threshold of determining the nationality of an individual under the Foreigner’s Act 1946?
- Whether any procedure violations were committed by the Foreigner’s Tribunal at Nalbari?
- Can errors or deficiencies in documentation, such as discrepancies in official records or lack of sufficient evidence, be decisive factors in the rejection of nationality claims under the Foreigner’s Act, 1946?
Contentions
APPELLANT – Mohammed Rahim Ali @ Abdur Rahim
The Appellant has contended that the past two rulings of the Foreigner’s Tribunal at Nalbari and the High Court at Guwahati which have declared him to be a foreigner to be arbitrary and totally perverse as there is overwhelming evidence in his submissions that he is an Indian national on the following grounds –
- He has been a resident of India throughout his life
- His relatives – parents and siblings have been Indian residents long before the cut off date prescribed by the government which was 25th January 1971
The Appellant through his learned counsel has made another argument which favours his status as an Indian resident. He was included in the National Registrar of Citizens ( NRC) in 2021; long after he in 2012 was declared as a foreigner. Furthermore, he quoted the judgement of the Supreme Court in the case of Anjum Kuddus v. Union of India, wherein the Supreme Court observed that when a person is not included in the NRC and is declared as a foreigner by the Tribunal, such individual is eligible to move the High Court only through issuing a writ petition; something which is not enforceable as the Appellant has been included most recently in the NRC and is still deemed to be a foreigner. As a result, he has the right to properly move the Courts against the order of the Tribunal.
RESPONDENT – State of Assam
The State has argued that this case is a classical case of illegal migration which has occurred after the cut off date of 25th March 1971. Furthermore, it argues that the State of Assam, owing to its proximity to the border between India and Bangladesh has long suffered from the ills of illegal migration and it is the Constitutional duty of the Republic of India under Section 355 of the Constitution to defend the State of Assam from external aggression and internal strife – which can be exacerbated due to illegal immigration.
Additionally, the State has argued that under Section 9 of the Foreigner’s Tribunal Act and in the case of Sarabananda Sonowal v. Union of India , the onus lies on the person so alleged to be a foreigner to prove that he/she is not one and is indeed a resident of India. As the Appellant was unable to furnish any concrete evidence of him being an Indian resident , the ex-parte order, which was passed in 2012, declaring him a foreigner was justified as the Appellant had refused to prove his status as an Indian resident and had not attended trial proceedings. The justification of ill health used by him has been found to be fake and thus the justification is not valid.
Verdict
The Supreme Court ruled in favour of the Appellant. It declared him as a rightful citizen of India and was sharply critical of the decision of the Foreigner’s Tribunal, observing that the latter had no evidence to question the nationality of the Appellant.
Rationale behind the verdict
The Supreme Court was sharply critical of the decisions taken by the Foreigners Tribunal, Nalbari. It observed that the tribunal as an authority should have had some material or evidence to suspect that the Appellant was indeed a foreigner. Furthermore, it simply cannot put forth an allegation on any person who is in the position of the Appellant and but the burden of their proving their nationality on such person. If they have an allegation against the nationality of any accused, then it cannot be hollow and must be backed with evidence. Additionally, the Court observed that authorities like the Tribunal cannot initiate proceedings based on vague allegations as they have significant consequences for the individual.
Another important observation which was made by the Supreme Court was the importance of a strict and iron-clad adherence to the principles of natural justice. This was in reference to the ex-party order issued by the Tribunal in declaring that the Appellant was a foreigner without giving the latter a chance to defend himself. It noted that both sides should be heard and any information that is available to the authorities must be communicated to the accused to permit him to contest the allegations.
Finally, the Court touched upon the topic of spelling errors and discrepancies in dates on official documents and declared that such discrepancies are minor owing to the issue of limited literacy in India. This observation was made in light of the Foreigner’s Tribunal in Nalbari rejecting the documents which were produced by the Appellant to prove that he and his parents resided in Indian territory after the cut off date of 25th March 1971, on the aforementioned grounds.
Thus, the Supreme Court has resolutely overturned the decisions of the Guwahati High Court and the Nalbari Foreigners Tribunal on these grounds. Furthermore, it resolutely rejected the contentions of the State, dismissing them as mere technicalities. Furthermore, the Court was critical on the Tribunal’s decision to declare him a foreigner arbitrarily without even consulting him or giving him a chance to put forth his submissions
Defects of Law
What stands to me as most concerning is the seemingly arbitrary manner in which the Foreigners Tribunals has wielded the power that has been granted to it under Section 9 of the Foreigners Act, 1946. This can be seen when the Tribunal has accused the Appellant as a foreigner and has placed the burden of proof on him. This creates a heavily unbalanced dynamic with balance of power skewed towards the Tribunal. This creates a troubling precedent wherein the Tribunal can arbitrarily declare any single individual as a foreigner and pressurise him/her to prove that they are indeed citizens of India and not aliens.
Another development in the case which stood out to me was the blatant overriding of principles of natural justice which was exhibited by the Tribunal. Not only was the Appellant arbitrarily labelled as a foreigner when he was actually living in Indian soil before the cut off date of 25th March 1971, his ill health and the certification of the same was doubted and brushed aside in a callous manner. This was seen when the Tribunal passed an ex-parte order without even giving the Appellant to defend himself, owing to his ill health. The heavy-handed nature of the Tribunal is clear in this scenario. Furthermore, the blatant rejection of the documents furnished by the Appellant on grounds of spelling errors and discrepancies highlights at the Tribunal acting in an authoritarian and hasty manner – in a rush to deport the Appellant. This also suggests that the Tribunal and the High Court at Guwahati have acted in a tunnel visioned manner – an excessively rigid focus on technicalities without even considering the broader context of the reasons for the emergence of such technicalities.
More importantly, the judgement of the Supreme Court struck down the concerns of the respondents regarding material inaccuracies regarding certain minor details such as errors in spelling of names of relatives, the place of residence and certain dates, on the grounds that such inaccuracies were minor considering the overall literacy rate of the country being on the lower end of the spectrum at those times ( around the late 1960s). It is obvious yet must be pointed out that the situation is vastly different now as the country’s rate of literacy has considerably improved to around 73% according to the 2011 census. Therefore, similar issues on documentation cannot be linked to the low levels of literacy as times have changed. This is not a criticism of the ruling of the Hon’ble Supreme Court, but a concern which arises in cases of illegal immigration in the present day.
Inference
The decision of the Supreme Court in declaring the Appellant as a resident of India is a welcome one. Unfortunately, it has come too late as the Appellant had passed away 2 years prior to the judgement. No citizen of India should be treated in such an unfair—almost parochial—manner by their government, like how the Appellant, Md Rahim Ali, was. It is a disheartening reality that justice was not served in a timely manner for the Appellant. The delay in the legal process highlights the need for more efficient and expedited judicial procedures to prevent similar injustices in the future.
Furthermore, it is a good decision of the Supreme Court to impose checks and balances on the authority of the Foreigners Tribunal. Hopefully, this can stymie the heavy-handed nature of these authorities and no citizen shall be so appallingly treated by their own government like how the Appellant here was treated. In addition, the Supreme Court’s intervention sets a precedent for ensuring fair and just treatment for all individuals involved in legal proceedings. It is crucial for the judiciary to uphold the principles of justice and protect the rights of every citizen, regardless of their background or circumstances. This landmark ruling serves as a reminder of the importance of judicial oversight in safeguarding individual rights and preventing abuse of power. By holding authorities accountable and promoting transparency, the Supreme Court’s decision reinforces the foundation of a democratic society where justice prevails for all.
Case Commentary done by –
Abhinav Deepak
4th year B.Com,.LL.B
Ramaiah College of Law, Bengaluru