The Supreme Court on Monday raised the bar on matters of citizenship and foreigner status, observing that they occupy a high constitutional field. It was dealing with a batch of appeals by 27 individuals who had been determined to be foreigners by the Foreigners Tribunals in Assam and, in some cases, by the erstwhile Illegal Migrants (Determination) Tribunals. The Gauhati High Court upheld the tribunals’ opinion. The ex parte orders had been passed as the litigants rarely, if ever, appeared before the tribunal despite being served notice. There was also a third category where the high court, not the tribunal, examined the material presented by the litigants.
Quashing the 27 verdicts, Justices Vikram Nath and Sandeep Mehta stated due process will have to be followed even if the litigants fail to turn up before the tribunal. In other words, the individual must be served with the main grounds on which his/her nationality is considered suspect. Reasonable opportunity must be given to the individual to make a representation and produce evidence. Seeking evidence from the concerned Superintendent of Police in the case is part of the due process. In addition, the final order of the tribunal must contain a concise statement of the case’s facts. Even if the individual fails to present himself/herself, the tribunal has to apply its mind to the main grounds, proof of service and the evidence, which it apparently ignored. As for the high court examining the litigants’ documents, the Bench said it cannot cure the absence of a proper adjudication before the tribunal. Evidence often relates to ancestry, family linkage, residence, identity, electoral records and other public documents. Such material may require proof, explanation, comparison, and where necessary, rebuttal, which can only be done at the tribunal, the Bench reasoned.
The Supreme Court made the important point that the failure of a litigant to appear before the tribunal cannot be converted into proof under the Foreigners Act, 1946. Underscoring the need for a fair, lawful and reasonable process, the bench remanded all 27 cases to the tribunal without offering any opinion on their merits. By doing so, it gave the statutory body a wake-up call on constitutional processes and opened a window for possible redress on the life-altering question of nationality.