In a landmark decision, the Supreme Court has denounced the manner in which citizenship proceedings were initiated against a resident of Assam Rahim Ali, culminating in his declaration as an Indian citizen twelve years after being labeled a foreigner by a Foreigners Tribunal.
Labeling the initial proceedings against Rahim Ali as a "grave miscarriage of justice," the Supreme Court highlighted the inadequacy of Section 9 of the Foreigners Act to “pick a person at random, knock at his/her/their door and tell him/her/they/them, ‘We suspect you of being a foreigner’, and then rest easy”.
The case dates back to 2004, when a sub-inspector from Nalbari police station visited Rahim Ali's home, alleging his possible status as a foreigner and demanding proof of Indian nationality.
Despite Rahim Ali's subsequent efforts, including seeking a brief extension to gather necessary documents, the tribunal proceeded ex-parte in 2006, declaring him an illegal migrant from Bangladesh post-March 25, 1971.
Reports suggest that Rahim was unwell, due to which he was unable to come to court, however, the tribunal held that he “had failed to discharge his burden” under Section 9 of the Foreigners Act and failed to prove that he is not a foreigner.
The Supreme Court, meanwhile, questioned the basis of the allegations and the procedural fairness of the tribunal's actions two decades ago.
The Court emphasized the requirement under the 1964 Foreigners (Tribunals) Order for authorities to provide accused individuals with specific grounds for suspicion and adequate opportunities to present their case and evidence. It criticized the lack of substantive evidence against Rahim Ali beyond vague allegations, stressing that mere accusations cannot shift the burden of proof to the accused without proper disclosure of supporting materials.
“It is for the authorities concerned to have in their knowledge or possession some material basis or information to suspect that a person is a foreigner and not an Indian. In the present case… nothing has come on record to indicate even an iota of evidence against him, except for the bald allegation that he had illegally migrated to India post 25.03.1971,”
“It needs no reiteration that a person charged or accused would generally not be able to prove to the negative, if he/she is not aware of the evidence/material against him/her which leads to the person being labelled suspect. Ipso facto, just an allegation/accusation cannot lead to shifting of the burden to the accused, unless he/she is confronted with the allegation as also the material backing such allegation… 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),” it states.
Aman Wadud, a prominent lawyer specializing in citizenship cases, hailed the judgement as a "watershed moment in citizenship jurisprudence," highlighting its potential impact on similar cases across Assam.
He said, “We have been talking about how randomly Indian citizens are accused of being foreigners. This is probably the first judicial decision on how random the process is, and it explains clearly that we need to go right to the core of the matter, the very initiation of the proceeding before the tribunal… In case after case, we have been saying that there is no investigation whatsoever… The judgement clearly explains that there should be some material to accuse a person of being an illegal migrant and not just randomly single them out.”
Rahim Ali's ordeal continued in 2017 when discrepancies in document details led to another tribunal declaring him a foreigner, despite evidence showing his parents' long-term residence in India well before 1966. The Supreme Court criticized the tribunal's narrow focus on minor discrepancies in spelling and document variations, common in electoral rolls and official records throughout India.
The judgement further stressed the common occurrence of name variations across languages and documents, cautioning against the tribunal's oversight of such nuances. It called for the need for a rigorous, evidence-based approach in citizenship cases to prevent unjust outcomes based on administrative errors or linguistic differences.
“Variation in name spelling is not a foreign phenomenon in preparation of the Electoral Roll… 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. The Tribunal seems to have been totally oblivious to all this,” states the judgement.
“It is not uncommon throughout India that different spellings may be written in the regional/vernacular language and in English. Such/same person will have a differently spelt name in English and the local language,” it added.
