The Supreme Court of India, through a bench comprising Justice Vikram Nath and Justice Sandeep Mehta, has ruled that an opinion declaring a person to be a foreigner cannot be sustained if the adjudication before the statutory forum was ex parte or effectively ex parte without meeting the minimum requirements of a lawful, fair, and reasoned trial. Allowing a batch of appeals challenging various orders of the Gauhati High Court, which had affirmed such ex-parte declarations, the Supreme Court set aside the impugned judgments and remitted the matters back to the respective Foreigners Tribunals in Assam for fresh, merit-based adjudication under strict guidelines.
Background of the Case
The appeals arose from proceedings before the Foreigners Tribunals in the State of Assam, and in some older instances, the erstwhile Illegal Migrants (Determination) Tribunals (IMDT). In all these matters, the appellants had been declared foreigners. These declarations were subsequently affirmed by the High Court of Assam, Nagaland, Mizoram, and Arunachal Pradesh at Guwahati.
The common grievance of the appellants was that they were declared foreigners in proceedings that were either entirely ex parte or had become effectively ex parte midway, depriving them of a full and meaningful opportunity to contest the reference. The Supreme Court categorized the appeals into three distinct groups to analyze the procedural lapses systematically:
- Category I: Appellants who never appeared before the Tribunal despite records indicating notice was served.
- Category II: Cases where the High Court, while considering challenges to the ex-parte opinions, proceeded to examine or appreciate the documents and material for the first time in writ proceedings.
- Category III: Appellants who initially appeared or took preliminary steps before the Tribunal but later defaulted, leading to ex-parte opinions.
Statutory Framework and Legal Arguments
The primary legal issue centered on whether a mechanical declaration of foreigner status—given its severe, life-altering consequences—could legally stand under the statutory framework.
The Court scrutinized Section 9 of the Foreigners Act, 1946, which dictates that the burden of proving that a person is not a foreigner lies on the individual. The bench acknowledged that this statutory burden is understandable because facts relating to birth, parentage, residency, and lineage are within the special knowledge of the person proceeded against.
However, the Court emphasized that this burden must be understood in the context of Paragraph 3 of the Foreigners (Tribunals) Order, 1964. Under this provision, a proceedee must be served with the “main grounds” of the allegation, which requires more than a bare assertion of suspicion. The proceedee must be given a real opportunity to file a representation, produce evidence, and be heard.
Constitutional Analysis and Fair Procedure
The Supreme Court highlighted that the statutory burden of proof under Section 9 of the 1946 Act cannot be used to bypass the legal process itself.
The bench drawing from the precedent in Md. Rahim Ali @ Abdur Rahim v. State of Assam and Others (2024), reiterated that Section 9 does not exclude natural justice. A person cannot be expected to prove a negative without being informed, with reasonable clarity, of the material basis of the allegation against them.
Importantly, the Court anchored its reasoning in Articles 14 and 21 of the Constitution of India, noting that the rights to equality and the protection of life and personal liberty apply to “any person” within the territory of India, and are not confined to citizens. The bench cited Louis De Raedt v. Union of India (1991) and National Human Rights Commission v. State of Arunachal Pradesh (1996) to affirm that individuals with disputed citizenship are fully entitled to Article 21 protections.
Furthermore, referencing the landmark decision in Maneka Gandhi v. Union of India (1978), the Court stated that any prescribed procedure must be “fair, just and reasonable” and cannot be “fanciful, oppressive or arbitrary.” Underlining the principle of audi alteram partem (hear the other side), and citing cases like Cooper v. Wandsworth Board of Works (1863), A.K. Kraipak v. Union of India (1969), and Canara Bank v. Debasis Das (2003), the Court held that the opportunity to respond must be effective and real.
In its key observations on the statutory and constitutional balance, the Court noted:
“The burden on the proceedee operates within a legal process. It does not replace the legal process itself.”
Regarding the obligations of Tribunals in ex-parte scenarios, the Court observed:
“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.”
On the applicability of constitutional guarantees during citizenship inquiries, the Court stated:
“The constitutional guarantee of life and personal liberty, therefore, operates even at the stage where the status of the person is itself under inquiry.”
Finding on the Three Categories
Addressing the specific categories of default, the Court ruled as follows:
- Category I (Non-appearance): While Tribunals are not bound to keep proceedings pending indefinitely, the absence of the proceedee does not relieve the Tribunal of its obligation to examine whether the reference is supported by the State’s material. The absence of the proceedee cannot be treated as an automatic substitute for proof.
- Category II (High Court’s Factual Appreciation): The Court ruled that the Gauhati High Court should not act as the primary forum for factual appreciation of documentation that was never tested before the statutory Tribunal.
- Category III (Default Midway): Although the Court criticized the casual conduct of proceedees who default after entering an appearance, it held that the grave consequences of a foreigner declaration still require a complete and reasoned adjudication on the merits of the material.
The Decision
The Supreme Court allowed all the appeals, setting aside the Gauhati High Court’s judgments and the corresponding opinions/orders of the Foreigners Tribunals and erstwhile IMDTs. Clarifying that it has not expressed any opinion on the merits or admissibility of the individual citizenship claims, the Court remitted all cases to the concerned Foreigners Tribunals for fresh, independent adjudication.
To ensure the remand is not used to delay proceedings, the Court imposed strict conditions:
- The appellants must appear before the respective Foreigners Tribunals within four weeks from the date of the judgment.
- Upon appearance, the Tribunals will permit the appellants to file written statements, documents, and affidavits of evidence within a strictly monitored, reasonable timeframe.
- The State and reference authorities remain at liberty to produce material and evidence.
- No coercive steps shall be taken against the appellants based on the set-aside opinions, subject to them appearing and cooperating with the fresh proceedings.
- If any appellant fails to appear or cooperate, the Tribunals are free to proceed in accordance with law.
- The Tribunals are directed to make an endeavor to decide the remitted references expeditiously, preferably within six months from the date of the appellants’ first appearance.
Case Title: Sabitri Dey @ Swasthi Dey & Ors. v. Union of India & Ors.
Case No.: Civil Appeal No. 2820/2024 (with connected matters)
Bench: Justice Vikram Nath, Justice Sandeep Mehta
Date: July 13, 2026
