Can A Person Be Declared Foreigner Solely For Non-Appearance Before Foreigners Tribunal? Supreme Court Explains

The Supreme Court recently held that although Section 9 of the Foreigners Act, 1946 places the burden of proving Indian citizenship on the person facing proceedings before a Foreigners Tribunal, that statutory burden does not relieve the Tribunal of its duty to conduct a lawful, fair and reasoned adjudication before declaring a person a foreigner.

A bench of Justice Vikram Nath and Justice Sandeep Mehta made the observation while setting aside ex parte opinions passed against several alleged foreigners in Assam and remanding the matters to the concerned Foreigners Tribunals for fresh adjudication.

The common question before the Court was whether proceedings under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 can culminate in an ex parte declaration that a person is a foreigner without a meaningful examination of service of notice, opportunity of hearing, the material forming the basis of the reference and the evidence produced by the State.

Section 9 of the Foreigners Act, provides that where a question arises whether a person is a foreigner, the burden of proving that they are not a foreigner lies on that person. Unlike most proceedings, where the party making an allegation ordinarily has to prove it, Section 9 places the onus on the proceedee.

Paragraph 3 of the Foreigners (Tribunals) Order, 1964 prescribes the procedure to be followed by Foreigners Tribunals. It requires the Tribunal to serve the proceedee with the main grounds on which they are alleged to be a foreigner, give them a reasonable opportunity to make a representation and produce evidence, consider the evidence produced by both the proceedee and the Superintendent of Police, hear persons it considers necessary, and render an opinion containing a concise statement of facts and its conclusion.

The Court held that the statutory burden under Section 9 operates within a legal process and cannot replace that process itself.

The Court explained that Section 9 undoubtedly casts the burden on the proceedee to establish that he or she is not a foreigner because facts relating to birth, parentage, residence, family lineage and supporting documents are ordinarily within that person's special knowledge. However, this does not authorise the Tribunal to mechanically accept the reference or treat the proceedee's absence as proof that the allegation is correct. The Court stressed that the Tribunal must still independently examine the material produced before it and conduct a lawful adjudication.

The Court held that the statutory burden under Section 9 arises only after the proceedee has been served with the “main grounds” on which he or she is alleged to be a foreigner. Further, the expression “main grounds” cannot be reduced to a bare allegation or suspicion. The proceedee must know the substance of the case in order to meaningfully answer the reference and discharge the statutory burden, the Court emphasised.

“The statutory scheme, therefore, has two complementary features. The first is that the proceedee carries the burden of proving that he or she is not a foreigner. The second is that the Tribunal must ensure a fair procedure, meaningful notice, consideration of material, and a reasoned opinion. These features are not in conflict. They operate together. The burden under Section 9 of the 1946 Act arises and is discharged within the procedural safeguards of Paragraph 3 of the 1964 Order”, the Court held.

The Court further observed that proceedings before a Foreigners Tribunal are not administrative formalities. Even if a person fails to appear despite service of notice, the Tribunal continues to function as a quasi-judicial body. It must satisfy itself that notice was duly served, the main grounds were supplied, the State has produced evidence in support of the reference, and such material is sufficient to support the conclusion that the person is a foreigner. The final opinion must record reasons, even if briefly, the Court added.

The Court emphasised that Section 9 cannot be interpreted as permitting the Tribunal to simply affirm a reference because the proceedee remained absent.

Relying on its earlier decision in Md. Rahim Ali @ Abdur Rahim v. State of Assam 2024 LiveLaw (SC) 462, the Court reiterated that the statutory burden does not permit authorities to proceed merely on bare allegations or unsupported suspicion. It observed that the proceedee must be informed of the essential basis of the allegation and cannot be expected to prove a negative without knowing the case he or she has to meet.

The Court further emphasised that Articles 14 and 21 are available even to persons whose citizenship is under inquiry. While Parliament may regulate the entry, stay and removal of foreigners, the process by which foreigner status is determined must satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness, the Court observed.

“It is necessary to lay emphasis on the language of both these Articles. Article 14 of the Constitution uses the expression “any person”. Article 21 of the Constitution uses the expression “no person”. Neither provision is confined to citizens. The protection of equality before law, equal protection of laws, life and personal liberty is, therefore, available to every person within the territory of India. A person proceeded against before a Foreigners Tribunal may ultimately fail to establish Indian citizenship, but the process by which such determination is made must still satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness”, the Court stated.

The Court held that the principles of natural justice supplement the statutory scheme. It added that adequate notice and a meaningful opportunity of hearing are essential before a person can be declared a foreigner.

The Court classified the appeals into three categories – cases where the proceedee never appeared before the Tribunal, cases where the High Court itself undertook appreciation of evidence in writ proceedings, and cases where the proceedee initially participated but later defaulted.

The Court held that in all three categories, the Tribunal was still required to independently examine the reference, the State's evidence and the material on record before recording its opinion. The High Court also could not ordinarily substitute the Tribunal by becoming the first forum to appreciate factual material, the Court observed.

While setting aside the Guwahati High Court judgments which upheld the Tribunal opinions, the Court clarified that remanding the matters back to the respective Tribunals does not dilute the statutory burden under Section 9 or confer any advantage upon the appellants.

The remand was ordered only to ensure that a declaration carrying serious consequences such as detention, deportation or possible statelessness follows a fair, lawful and reasoned adjudication consistent with the Foreigners Act, the 1964 Order and constitutional guarantees.

Headnote

Foreigners Act, 1946 — Section 9 — Foreigners (Tribunals) Order, 1964 — Constitutional Law — Articles 14 and 21 — Principles of Natural Justice — Audi Alteram Partem — Fairness in Quasi-Judicial Adjudication — Standard Operating Procedure for Ex Parte and Effectively Ex Parte Proceedings before Foreigners Tribunals - Key Legal Propositions & Ratio Decidendi – i. Nature of Statutory Burden vs. Obligation of Lawful Adjudication - While Section 9 of the Foreigners Act,1946 shifts the onus of proof onto the proceedee to establish that they are not a foreigner, this statutory burden cannot be interpreted to mean that the Foreigners Tribunal is relieved of its own obligation to conduct a lawful, fair, and objective adjudication - The statutory burden operates strictly within a legal process; it does not replace the legal process itself - The absence or non-appearance of a proceedee cannot mechanically be treated as a substitute for an objective examination of the material and evidence placed before the Tribunal by the State [Para 12, 16]; ii. Procedural Safeguards & "Main Grounds"- Under Paragraph 3(1) of the Foreigners (Tribunals) Order, 1964,the expression "main grounds" holds significant statutory weight and requires the State to disclose the essential material basis on which the allegation is founded, rather than serving a bare assertion or undefined suspicion - An opportunity to reply and lead evidence becomes illusory if such grounds are not clearly apprised to the proceedee [Para 13, 17, 18]; iii. Duties of the Tribunal in Ex Parte Proceedings - Even when a proceedee fails to appear despite the recorded service of a notice, the Foreigners Tribunal, acting as a quasi-judicial body, cannot render a mechanical declaration - It is duty-bound to satisfy itself that the notice was lawfully served, examine the "main grounds”, independently evaluate the evidence produced by the State (via the concerned Superintendent of Police), and record a reasoned opinion containing a concise statement of facts and conclusions as mandated under Paragraph 3(16) of the 1964 Order [Para 14, 15, 32]; iv. Constitutional Protections Extended to Non-Citizens - The fundamental protections of equality before the law (Article 14) and the protection of life and personal liberty (Article 21) use the terminology "any person" and "no person" respectively, ensuring their availability to every individual within the territory of India, including those whose citizenship status is under dispute - The process of determining nationality carries grave civil consequences (such as detention, deportation, and statelessness) and must strictly satisfy the constitutional thresholds of fairness, reasonableness, and non-arbitrariness as established under the Maneka Gandhi principle [Para 18, 20, 21, 23]; v. Role of the High Court in Writ Jurisdiction - The Foreigners Tribunal is the primary statutory adjudicatory forum designed to evaluate complex factual inquiries relating to ancestry, lineage, electoral records, and public documents - Where a proceeding before the Tribunal was ex parte, the High Court under Article 226 should not substitute the statutory mechanism by becoming the first forum for the factual appreciation or testing of such vital citizenship documents - The appropriate legal course is a conditional remand to the primary forum - Acknowledging the grave consequences of a foreigner declaration, the Supreme Court set aside the impugned orders of the High Court and the Foreigners Tribunals, granting a one-time final opportunity to the appellants to contest the references on merits - The matters were conditionally remitted to the respective Tribunals with a direction to conclude the fresh, uninfluenced adjudications within six months, subject to the strict cooperation of the proceedees. [Relied on Louis De Raedt v. Union of India, (1991) 3 SCC 554; National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; A.K. Kraipak v. Union of India, (1969) 2 SCC 262; Canara Bank v. Debasis Das, (2003) 4 SCC 557; Paras 35, 36, 37, 38-54]

Case: Sabitri Dey @ Swasthi Dey v. Union of India C.A. No. 2820/2024 and connected cases

Citation: 2026 LiveLaw (SC) 672

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