Supreme Court Clarifies Burden of Proof in Foreigner Cases: Md. Rahim Ali vs. State of Assam (2024)

Date of the Judgment: July 11, 2024
Citation: 2024 INSC 511
Judges: Vikram Nath, J., Ahsanuddin Amanullah, J.
Can authorities initiate proceedings against a person as a suspected foreigner without any preliminary evidence? The Supreme Court of India addressed this critical question in a recent judgment, emphasizing the need for a fair process and adherence to natural justice principles. The Court clarified that while the burden of proof lies on the individual to prove they are not a foreigner under Section 9 of the Foreigners Act, 1946, authorities must have some initial basis for suspicion.

Case Background

The case involves an appeal by Md. Rahim Ali against a decision of the Gauhati High Court, which had upheld a Foreigners Tribunal order declaring him a foreigner. The Tribunal’s order was based on the premise that Mr. Ali failed to prove his Indian citizenship as mandated by Section 9 of the Foreigners Act, 1946. Mr. Ali claimed that his parents were listed in the 1965 and 1970 voter lists, and he was also listed in the 1985 voter list. He moved to a new residence after his marriage in 1997, and his name was subsequently included in the 1997 voter list at his new address.

In 2006, a case was registered against him at the Foreigners Tribunal, Nalbari, doubting his nationality. Despite appearing initially, Mr. Ali could not file a written statement due to health issues. The Tribunal eventually passed an ex-parte order in 2012, declaring him a foreigner. The Gauhati High Court dismissed his writ petition against this order in 2015.

Timeline:

Course of Proceedings

The Foreigners Tribunal initially declared Mr. Ali a foreigner in an ex-parte order, citing his failure to discharge the burden under Section 9 of the Foreigners Act, 1946. The Gauhati High Court upheld this decision, noting discrepancies in the documents submitted by Mr. Ali and questioning the authenticity of his medical certificate. However, the Supreme Court, during the present proceedings, directed the Tribunal to re-examine the matter, leading to a fresh report which again declared Mr. Ali a foreigner.

Legal Framework

The core legal issue revolves around Section 9 of the Foreigners Act, 1946, which states:

“9. Burden of proof – If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.”

This provision places the burden of proof on the individual to prove they are not a foreigner. The Supreme Court also considered Section 6A of the Citizenship Act, 1955, which deals with the citizenship of persons covered by the Assam Accord, setting a cut-off date of March 25, 1971, for determining citizenship status. Additionally, the Court referred to the Foreigners (Tribunal) Order, 1964, which outlines the procedure for tribunals to handle cases of suspected foreigners.

Arguments

Appellant’s Submissions:

• The appellant argued that the Tribunal did not provide him with a fair opportunity to present his case, especially given the serious consequences of being declared a foreigner.
• He contended that the High Court focused on minor discrepancies in his documents, such as spelling variations and date differences, which are common and should not lead to a presumption of incorrectness.
• He submitted that the medical certificate, even if disputed, was issued by a consultant at a civil hospital, and the lack of meticulous record-keeping at such hospitals should not be held against him.
• He argued that even if his absence from the Tribunal was not genuine, his fundamental right to be heard should not be denied.
• He highlighted that he was born in India, his family members are Indian citizens, and there is no other country that would accept him as a citizen.
• He argued that his name was not included in the National Register of Citizens (NRC) because he was declared a foreigner in 2012, and as per Abdul Kuddus v Union of India, (2019) 6 SCC 604, he can only challenge this through writ proceedings.

State’s Submissions:

• The State argued that illegal migration from Bangladesh poses a grave threat to Assam’s economy, demography, and culture, citing Sarbananda Sonowal v Union of India, (2005) 5 SCC 665.
• They emphasized that the case involves illegal migration after the cut-off date of March 25, 1971, and should be handled with caution.
• They highlighted that Section 9 of the Foreigners Act, 1946, places the burden on the alleged foreigner to prove they are not a foreigner.
• They stated that the appellant failed to produce any documents before the Inquiry Officer in 2004, leading to the case being referred to the Tribunal.
• They argued that the appellant appeared on 18.07.2011, sought time to file a written statement, but then remained absent, failing to discharge his burden under Section 9 of the Act.
• They contended that the medical certificate submitted by the appellant was fake, and the High Court rightly dismissed the writ petition on that basis.
• They submitted that the Tribunal, following the Supreme Court’s direction, again found the appellant to be an illegal migrant after the cut-off date.
• They argued that the proceedings have already taken two decades, and any further delay would defeat the purpose of the Act.
• They reiterated that the appellant’s name was not included in the NRC because he was declared a foreigner before its preparation, and as per Abdul Kuddus, the Tribunal’s findings operate as res judicata over the NRC process.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issue was:

1. Whether the authorities can initiate proceedings against a person as a suspected foreigner without any preliminary evidence or material basis, and whether the Tribunal followed the principles of natural justice in the proceedings.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Court used the authorities to establish the following points:

• Abdul Kuddus v Union of India, (2019) 6 SCC 604: The Court cited this to highlight that a person declared a foreigner by the Tribunal can only move before the High Court in writ proceedings and that the Tribunal’s decision operates as res judicata over the NRC process. However, the court also clarified that the initial proceedings were flawed.
• Sarbananda Sonowal v Union of India, (2005) 5 SCC 665: The Court acknowledged the threat of illegal migration to Assam and the justification for placing the burden of proof on the alleged foreigner. However, the court emphasized that the authorities must first have some material basis for suspicion.
• Mangilal v State of Madhya Pradesh, (2004) 2 SCC 447: The Court used this to emphasize that principles of natural justice must be read into statutes, unless there is a clear mandate to the contrary.
• Tolaram Relumal v State of Bombay, (1955) 1 SCR 158, Krishi Utpadan Mandi Samiti v Pilibhit Pantnagar Beej Ltd., (2004) 1 SCC 391, Govind Impex Pvt. Ltd. v Appropriate Authority, Income Tax Dept., (2011) 1 SCC 529, and Commissioner of Customs (Import), Mumbai v Dilip Kumar & Company, (2018) 9 SCC 1: The Court cited these cases to emphasize that penal statutes must be construed strictly.
• Karnataka State Financial Corporation v N Narasimhaiah, (2008) 5 SCC 176: The Court cited this to emphasize that if special provisions are made in derogation to the general right of a citizen, the statute should receive strict construction.
• Mukesh Singh v State (Narcotic Branch of Delhi), (2020) 10 SCC 120: The Court used this to emphasize that in cases of reverse burden of proof, the presumption can operate only after the initial burden on the prosecution is satisfied.
• Noor Aga v State of Punjab, (2008) 16 SCC 417: The Court cited this to examine the imposition of a reverse burden on an accused and to emphasize the need for scrupulous compliance with the provisions of the Act.
• Sarbananda Sonowal v Union of India, (2007) 1 SCC 174: The Court used this to emphasize that adequate care should be taken to ensure no genuine citizen is thrown out of the country.
• Union of India v Ghaus Mohammad, 1961 SCC OnLine SC 2: The Court cited this to show that the onus of showing that he is not a foreigner was upon the respondent. However, the court distinguished the facts of the case.
• Fateh Mohd. v Delhi Administration, 1963 Supp (2) SCR 560 and Masud Khan v State of Uttar Pradesh, (1974) 3 SCC 469: The Court noted that these cases followed Ghaus Mohammad (supra).

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Lack of Initial Evidence: The Court found that authorities initiated proceedings against the appellant without any concrete evidence or material basis, violating the principles of natural justice.
• Misinterpretation of “Main Grounds”: The Court clarified that “main grounds” in the Foreigners (Tribunal) Order, 1964, is not synonymous with “allegation” and requires sharing the material supporting the allegation with the person concerned.
• Minor Discrepancies: The Court held that minor discrepancies in documents, such as spelling variations and date differences, should not be grounds for disbelieving the appellant’s claim of citizenship.
• Principles of Natural Justice: The Court emphasized that the principles of natural justice, including the right to be heard and the right to know the basis of the allegations, must be observed even when the statute is silent on these aspects.
• Penal Nature of the Statute: The Court noted that the Foreigners Act, 1946, is penal in nature and must be construed strictly, ensuring that no genuine citizen is wrongly declared a foreigner.
• Consequences of being declared a foreigner: The Court took into account the severe consequences of being declared a foreigner, including detention and deportation, and the need for a fair process.

The Supreme Court’s reasoning was heavily influenced by the need to protect individual rights and ensure a fair process, particularly in cases with severe consequences. The Court emphasized that while the burden of proof lies on the individual under Section 9 of the Foreigners Act, 1946, the authorities must still have some initial basis for suspicion and must follow the principles of natural justice.

The Court’s reasoning can be summarized as follows:

The Supreme Court held that the authorities cannot initiate proceedings against a person as a suspected foreigner without any preliminary evidence or material basis. The Court emphasized that the term ‘main grounds’ in Para 3(1) of the 1964 Order is not synonymous with ‘allegation’ and that the material on which such allegation is founded has to be shared with the person. The Court found that the Tribunal did not follow the principles of natural justice by not sharing the material collected with the appellant. The Court emphasized that the principles of natural justice need to be observed even if the statute is silent on that aspect. The Court also held that minor discrepancies in documents, such as spelling variations and date differences, should not be grounds for disbelieving the appellant’s claim of citizenship.

The Court considered alternative interpretations but rejected them, emphasizing the need for fairness and adherence to natural justice principles. The Court’s decision was based on the premise that the authorities must have some initial basis for suspicion and must share the material with the person concerned before shifting the burden of proof.

The Court’s decision can be summarized as follows:

• Authorities must have some initial material basis or information to suspect that a person is a foreigner.
• The term ‘main grounds’ in Para 3(1) of the 1964 Order is not the same as ‘allegation’. The authority must share the material on which the allegation is founded with the person.
• The principles of natural justice must be followed even if the statute is silent on that aspect.
• Minor discrepancies in documents should not be grounds for disbelieving a person’s claim of citizenship.

The Supreme Court, therefore, set aside the Tribunal’s order and the High Court’s judgment, declaring Mr. Ali an Indian citizen.

“In the present case, clearly the authorities concerned have gravely faulted by construing the words ‘a copy of the main grounds on which he is alleged to be a foreigner’ in Para 3(1) of the 1964 Order to mean the allegations levelled against the person. This error at the very inception stage is enough to render a fatal blow to the entire exercise undertaken. The term ‘main grounds’ is not synonymous or interchangeable with the term ‘allegation(s)’. There is no, and there cannot be any, ambiguity that ‘main grounds’ is totally distinct and different from the ‘allegation’ of being ‘a foreigner’.”

“For avoidance of doubt, we may restate that this does not imply that strict proof of such allegation has to be given to the accused person but the material on which such allegation is founded has to be shared with the person. For obvious reasons and as pointed out hereinbefore, at this stage, the question of the evidentiary nature of the material and/or its authenticity is not required. 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.”

“The evidence produced before the Tribunal by the appellant to indicate that his parents had been resident in India much prior to 01.01.1966 whereas his siblings and he himself much prior to 25.03.1971, has been disbelieved only on the ground of mismatch of actual English spelling of the names and discrepancy in dates. As far as the discrepancy(ies) in dates and spellings are concerned, we are of the view that the same are minor in nature.”

Key Takeaways

• Authorities cannot initiate proceedings against a person as a suspected foreigner without any preliminary evidence or material basis.
• The term “main grounds” in the Foreigners (Tribunal) Order, 1964, requires sharing the material supporting the allegation with the person concerned.
• Minor discrepancies in documents should not be grounds for disbelieving a person’s claim of citizenship.
• The principles of natural justice must be observed in all proceedings under the Foreigners Act, 1946.
• The burden of proof on the individual under Section 9 of the Foreigners Act, 1946, is triggered only after the authorities have some initial basis for suspicion and have shared the material with the person.

Directions

The Supreme Court directed that a copy of the judgment be circulated to the Tribunals constituted under the 1964 Order by the Registrar General of the High Court.

Development of Law

The ratio decidendi of this case is that while the burden of proof lies on the individual to prove they are not a foreigner under Section 9 of the Foreigners Act, 1946, authorities must have some initial basis for suspicion and must follow the principles of natural justice, including sharing the material supporting the allegation with the person concerned. This judgment clarifies the procedure for initiating proceedings under the Foreigners Act, 1946, emphasizing the need for a fair process and adherence to natural justice principles. This is a change from the previous position of law where the burden was solely on the individual without any corresponding obligation on the authorities.