A significant judgment was delivered by the Supreme Court on July 11, wherein the bench of Justices Vikram Nath and Ahsanuddin Amanullah observed that authorities cannot randomly accuse people of being foreigners and initiate investigation into a person’s nationality without there being some material basis or information to sustain the suspicion.
Holding the same, the bench overturned the judgment of the Gauhati High Court, through which the present appellant had been declared foreigner on the grounds that he failed to discharge his burden under Section 9 of the Foreigners Act, 1946 and failed to prove that he is not a foreigner.
Brief facts of the case:
The case against the present appellant, Md. Rahim Ali , had begun in the year 2004. The charges against Ali were regarding his alleged “illegal migration from Bangladesh post March 25, 1971.” The said date of March 25 of the year 1971 is significant as it is the cutoff date as per section 6A (Special provisions as to citizenship of persons covered by the Assam Accord) of the Citizenship Act.
The investigating officer, Sub-Inspector Bipin Dutta, sending the “notice” under the dreaded Foreigners Act, 1946, reported that the appellant failed to provide documentary evidence of entry into India before January 1, 1966. As a matter of course, as the experience of Citizens for Justice and Peace (www.cjp.org.in) in Assam reveals, the very basis of such notices are without basis or material facts.
In this case too, as provided by the order of the Supreme Court, the appellant stated that his parents’ names appeared in the voter lists of 1965 and 1970 for Village Dolur Pather, under Bhabanipur Legislative Assembly Constituency in Assam. Ali had also stated that he was born in the same village, and his name, along with his family members, appeared in the 1985 voter list. After marrying in 1997, he moved to Village Kashimpur, Nalbari district, where his name appeared in the 1997 voter list.
On the receipt of notice by the Tribunal, the appellant appeared on July 18, 2011, and has sought time to file the written statement as he was suffering some serious health ailments. It is to be noted that despite obtaining a medical certificate indicating his illness, the tribunal had passed an ex-parte order on March 19, 2012. Passing such ex-parte orders is also often routine in Assam.As per the order of the Tribunal, appellant Md. Rahim Ali had been declared a foreigner under Section 9 of the Foreigners Act, 1946 by the Foreigners Tribunal, Nalbari on March 19, 2012. The said declaration had been made by the Tribunal on the ground that Ali had failed to prove his Indian nationality.
After the order of the Tribunal was delivered, Ali moved the High Court on May 30, 2012, to challenge the order of the High Court. On June 6, 2012, the High Court stayed the tribunal’s order by passing an interim order, directing the authority not to deport the appellant during the pendency of the proceedings before the High Court. However, on November 23, 2015, the High Court dismissed the writ petition moved by Ali, affirming the tribunal’s order declaring Ali a foreigner and clearing the path for his deportation. Challenging the said order of dismissal of the High Court, Ali moved the Supreme Court.
Submissions made before the Supreme Court:
By the appellant-
The counsel for the appellant had submitted to the Court that Ali had been subjected to unfair treatment by the Tribunal as not even one fair opportunity was given to him to defend himself, even when Ali was facing serious penal consequences like detention and/or deportation from the country.
Referring to the impugned judgment of the High Court, the counsel claimed that the High Court had focussed on technicalities by accepting the issue of minor discrepancies in the documents, even as the same discrepancies were not of the nature to lead to a presumption in law that the documents were not correct. Additionally, the appellant also shed light on the medical certificate that was never examined by the High Court as well as the Tribunal.
“It was submitted that such declaration is totally perverse in the face of overwhelming evidence to show that the appellant besides being born in India and being a resident in India for his entire life and his blood relatives i.e., siblings and parents having been Indian citizens much prior to the cut-off date, the appellant has still been singled out to be declared a foreigner which does not stand to reason.” (Para 12)
By the respondent (state)-
As per the order, the counsel for the state of Assam provided that the present case was of illegal migration of a Bangladeshi national to India (Assam) after the cut-off date, and thus, has to be dealt with utmost caution, considering the adverse consequence of illegal migration on the whole country in general and the respondent-State in particular. With this, the state had taken action against Ali under Section 9 by providing that the onus is on the person proceeded against/alleged foreigner to prove that he is not a foreigner.
Withregards to the medical certificate, the respondent stated that the High Court, after verification, had found the authenticity of the said certificate to be fake and held that the appellant had taken recourse to falsehood with production of fake medical certificate. As per the submission, it was on the above count alone that the writ petition moved by Ali was dismissed, and the same cannot be said to be unreasonable warranting interference.
“It was submitted that this Court may also consider the fact that the proceedings against the appellant had already taken two decades to reach this stage and any further delay would defeat the very object and purpose of the Act which is speedy detection and deportation of illegal migrants/foreigners staying in India.” (Para 18)
Observation of the Court:
The Court began its analysis by stating that “Having considered the matter, the Court finds that grave miscarriage of justice has occasioned in the instant case.”
Notably, the bench had declared that it had kept Articles 14 (Right to equality) and 21 (Right to life and liberty) of the Constitution, which is available to both citizens and non-citizens, in mind while penning down the said judgment.
Lack of any basis for initiation of case against the Appellant-
The bench expressed dismay at the casual manner in which the authorities initiated proceedings on mere suspicion without any material.
“The question is that does Section 9 of the Act empower the Executive to pick a person at random, knock at his/her/their door, tell him/her/they/them ‘We suspect you of being a foreigner.’, and then rest easy basis Section 9? Let us contextualise this to the facts at hand.” (Para 34)
The Court noted that the originating point of the inquiry was SP (B) Nalbari’s direction to the Sub Inspector on May 12, 2004, but the same did not provide the basis upon which S.P. (B) Nalbari had issued the direction for inquiry.
“The pleadings and the record are silent as to what was the basis of the S.P. (B) Nalbari’s direction? What materials or information had come to his knowledge or possession that warranted his direction? Obviously, the State cannot proceed in such manner. Neither can we as a Court countenance such approach” (Para 34)
Based on the above-stated points, the bench proceeded to emphasise upon the requirement for the authorities to have material or information for suspecting a person to be a foreigner. Connecting the same to the present case, the Court stated that there is nothing on record to indicate even an iota of evidence against Ali except for the bald allegation that he had illegally migrated to India post the cut-off date.
“First, 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, though it is mentioned that from inquiry it was revealed that the appellant had migrated illegally to the State of Assam from Bangladesh after 25.03.1971 but 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.” (Para 35)
On the allegation that the appellant was unable to provide evidence that he is a citizen of India when the inquiry was being made, the Court observed that to prove evidence to be negative, the accused will be needed to be aware of the evidence/material against him/her.
“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.” (Para 35)
While refusing to go into the evidentiary value of the material at this stage, the bench stated that vague allegations, which simply reproduce the words of the provisions present in the act, cannot be permitted to be the basis of the charges against the accused. Furthermore, levying such vague charges and without supplying the accused with the necessary information and material cannot justify the burden on the accused to defend themselves.
“However, mere allegation, that too, being as vague as to mechanically reproduce simply the words which mirror the text of provisions in the Act cannot be permitted under law. Even for the person to discharge the burden statutorily imposed on him by virtue of Section 9 of the Act, the person has to be intimated of the information and material available against him, such that he/she can contest and defend the proceedings against him.” (Para 35)
In the present case, the bench held that it was specifically alleged that the appellant had come to Assam from Village Dorijahangirpur, district Mymansingh in Bangladesh. However, while the said imputation made it to be incumbent on the authority making the reference to the Tribunal to provide details as to how it had received such information of illegal migration and also the bona fide belief of such fact being true. Yet, the bench held that no such proof was submitted to the Tribunal by the authorities.
“In other words, the authority had been, as claimed, able to trace the appellant’s place of origin. Surely then, the authority had some material to back its assertion. The record does not show such material was given either to the appellant or the Tribunal by the authority.” (Para 36)
“In neither round of the proceedings before the Tribunal, whether it be the initial ex-parte one, or even after the matter was referred by this Court to the Tribunal to hear the appellant and pass an order, has it been revealed as to how and from where such specific allegation, down to the alleged village of origin of the appellant in Bangladesh was brought to or came to the knowledge of the authorities. Nor do we locate any supporting material.” (Para 37)
Based on the above provided analysis and reasoning, the Supreme Court bench held that in the absence of the such basic and primary material, it cannot be left to the untrammelled or arbitrary discretion of the authorities to initiate proceedings against individuals, especially when the same have life-altering and very serious consequences for the person. Thus, the basis of initiating such inquiries cannot be hearsay or bald and vague allegation(s).
The fact that the Gauhati High Court, before whom the matter has been since 2012, upheld such an unreasoned order of the Foreigners Tribunal (FT) is however disturbing as this means that in every such egregious case, justice can only be accepted from the apex court.
Go-by to the settled principles of natural justice-
The SC bench held that the authorities have gravely faulted at the inception stage itself by construing term ‘main grounds’ to be synonymous or interchangeable with the term ‘allegation(s)’.
“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’.” (Para 38)
Highlighting the distinction between main grounds and allegations, the bench held that the material on which such allegation is founded has to be shared with the person. Clarifying that that strict proof of such allegation has to be given to the accused person at the initial stage, the Court stated that the said responsibility of the authorities as well as the principle of natural justice cannot be ignored by the authorities no matter the circumstances. The opportunity to be heard is a right of accused.
“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. Audi alteram partem does not merely envisage a fair and reasonable opportunity of being heard. In our opinion, it would encompass within itself the obligation to share material collected with the person/accused concerned. It is no longer res integra that principles of natural justice need to be observed.” (Para 39)
Burden to prove citizenship and the documents produced-
While dealing with the point of documents and certificates that were obtained by various officers and presented by the accused, the bench also referred to aspect of those who are uninformed/illiterate or persons who are not well-informed, who do not understand the requirement to obtain and hold an official document or remain without possessing property in their own names.
“Another relevant aspect is the prevalent situation on the ground where uninformed/illiterate persons or persons not being well-informed, in the absence of any requirement to obtain and hold an official document and without possessing property in their own names, would not have any official document issued by the government, State or Central. It is neither difficult nor inconceivable to fathom such scenario amongst the rural populace, including within Assam.” (Para 40)
Coming to the present case, the bench noted that the document provided by the appellant were disbelieved only on the ground of mismatch of actual English spelling of the names and discrepancy in dates. As per the bench, minor discrepancies cannot form the basis of pronouncing such as judgments that will subject the appellant to dire consequences.
“As far as the discrepancy (ies) in dates and spellings are concerned, we are of the view that the same are minor in nature. Variation in name spelling is not a foreign phenomenon in preparation of the Electoral Roll. Further, the Electoral Roll has no acceptance in the eyes of law insofar as proof of date of birth is concerned. A casual entry by the enumerators when noting and entering the name(s) and dates of birth(s) as also the address(es) of the person(s) while making preparatory surveys for the purposes of preparing the Electoral Rolls 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. The Tribunal seems to have been totally oblivious to all this.” (Para 41)
“The State of Assam, as per the Census 2011, boasts of 72.19% literacy rate, with females at 66.27% and males at 77.85%. However, this was not the case during the 1960s or even 1970s. Not just in Assam but in many States, it is seen that names of people, even on important government documents can have and do have varied spellings depending on them being in English or Hindi or Bangla or Assamese or any other language, for that matter. Moreover, names of persons which are written either by the persons preparing the Voters List or by the personnel making entries into different Government records, the spelling of the name, based upon its pronunciation, may take on slight variations. 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. This is more pronounced where due to specific pronunciation habits or styles there can be different spellings for the same name in different languages.” (Para 42)
The court also noted that the appellant provided documents indicating his and his parents’ presence in India before March 25, 1971. After examining the documents presented by the appellant, the bench observed that from an overall discussion on the Report/opinion of the Tribunal, it is clear that there are minor discrepancy (ies) in the appellant’s documents, however their authenticity is not in doubt.
“In the considered opinion of this Court, the same would further buttress the appellant’s claim, that not being in the wrong, and being an ignorant person, he, truthfully and faithfully produced the official records as they were in his possession. We do not see any attempt by the appellant to get his official records prepared meticulously without any discrepancy. The conduct of an illegal migrant would not be so casual.” (Para 43)
Decision of the Court:
Based on the aforementioned observations and reasonings, the Supreme Court bench set aside the Gauhati High Court’s judgment and the Foreigners Tribunal’s order that declared Ali as a foreigner. The Supreme Cour bench found the order of the Tribunal to be “wholly unsustainable”.
The court further held that the inferences drawn by the Tribunal on the charges levied against the appellant do not falsify the appellant’s claim and defense. Furthermore, the bench found that in view of detailed analysis, the discrepancy(ies) in the material produced by the appellant can be termed minor and not be deemed sufficient to lead the Tribunal to doubt and disbelieve the appellant and the version put forth by him.
“This Court has found that the inferences drawn by the Tribunal do not falsify the appellant’s claim. In view of detailed analysis, the discrepancy(ies) in the material produced by the appellant can be termed minor. The same were not sufficient to lead the Tribunal to doubt and disbelieve the appellant and the version put forth by him. Thus, we are not inclined to remand the matter to the Tribunal for another round of consideration. Putting an authoritative quietus to the issue, the appellant is declared an Indian citizen and not a foreigner.” (Para 55)
The complete judgment can be read below.
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