In the Bihar Special Intensive Revision (SIR) case—Association for Democratic Reforms vs Election Commission of India—the Supreme Court had occasion to consider an incidental question related to citizenship. The court stated, “It may not be out of place to note that a ration card, unlike a passport or a birth certificate, is not a conclusive proof of citizenship.” The corollary is that a passport is proof of citizenship. Despite this judgement on May 27, an officer at the ministry of external affairs later stated quite the opposite—that the passport is only a “travel document” and not proof of citizenship.
That Section 20 of the Passport Act, 1967 allows granting passports to non-citizens is not a ground to deny the general evidentiary value of the Indian passport. This provision is an exception rather than the rule. Non-citizens will be granted passports only in unusual cases when the government feels the need to do so in public interest. The rarity cannot submerge the generality of the rule.
The ministry knows this well. Yet, the statement has added to the anxiety of the masses, particularly in the context of SIR processes. The Election Commission has, with active endorsement from the Chief Justice-led Bench, mixed the question of verification of electoral roll with the verification of citizenship. In a country like India, the impact of the regime’s exclusionary agenda on the weak and the marginalised from the electoral process has been enormous.
It is against this background that the judgement delivered last Monday in Sabitri Dey by a Bench of Justices Vikram Nath and Sandeep Mehta attains significance. The Bench allowed 27 appeals by persons who faced adverse declarations from Foreigners Tribunals or Illegal Migrants (Determination) Tribunals that were endorsed by the Gauhati High Court. The SC considered special leave petitions against the high court judgements. The top court framed the issue as “whether an ex parte or effectively ex parte proceeding can result in a mechanical declaration of foreigner status without the tribunal satisfying itself that the minimum requirements of lawful and fair adjudication have been met”—and answered the question in the negative.
The SC said that the tribunals had a duty to adjudicate the question of citizenship with the seriousness it deserves. It explained the true purport of Section 9 of the Foreigners Act, 1946 and said that the burden of proof of citizenship on the claimant does not absolve the duty of the tribunals to act fairly.
This section of the 1946 Act says that a person who asserts she is not a foreigner has to prove it. The Foreigners (Tribunals) Order, 1964 contemplates the procedures serving notice, producing evidence, examining and hearing the claimants. The law casts the burden of proof on the person asserting citizenship at the tribunals.
Even while acknowledging this legal position, the SC held, “The existence of a statutory burden under Section 9... cannot be read to mean that the tribunal is relieved of its own obligation to conduct a lawful adjudication.” The tribunal has to act judicially even in cases where proceedees do not appear, the SC stated. A mere reference to a person as foreigner without materials cannot be mechanically endorsed by the tribunal, the judgement emphasised.
Equality and dignity are constitutional ethos for all persons including non-citizens. The decision in Louis De Raedt (1991) was a constitutional affirmation of the rights of non-citizens. The Maneka Gandhi (1978) case underlined the need for a fair, just and reasonable procedure. Relying on these precedents, among others, the SC in Sabitri Dey held “the tribunal must examine whether the proceedee had a fair opportunity, whether the main grounds (to doubt the citizenship) were disclosed, whether the evidence before it was capable of supporting the reference, and whether the conclusion follows from the material on record”.
The court emphasised the principles of natural justice, relying on an earlier English judgement in Wandsworth Board of Works (1863). It also referred to A K Kraipak (1969) and Debasis Das (2003), and elaborated on the need for fairness.
It is not as if the sword of Damocles of deportation or detention hanging over the persons suspected will be removed altogether by the latest pronouncement. The SC could not and did not decide each appeal on merit. It only remanded back the cases. There would be thousands who did not even venture to litigate the matter. The SC has only acted within the frameworks of law, dealing with the parties before it.
It also noted the “legitimate and compelling” State interest in the matter. Thus, the rigour of the law and its impact on the poor, the illiterate and the marginalised is not diluted. The limited significance of the judgement is that it was sympathetic towards the persons who were labelled as foreigners without a due process.
A responsible government is bound to tackle the issue of illegal migration. In doing so, it needs to go by the law. A bona fide investigation in doubtful cases is always permissible. But problems arise when the Executive mixes these issues with an electoral agenda based on the compulsions of party politics.
Democracy suffered when the government started to decide who should vote, instead of the people deciding who should govern. It suffered when citizenship and foreigner status became tools to fence out from polling booths genuine voters who are a part of “we, the people”. And it suffers when a nation constructed brick by brick with a design for the future is sought to be smashed by those who don’t believe in the ideology of the Constitution.
Constitutional governance is not an easy task, while de-constitutionalisation is. A substantial part of the constitutional text deals with governance. Therefore, misgovernance is the most visible symbol of de-constitutionalisation. It happens by way of commissions and omissions by the Executive and the Legislature.
From manipulations of examinations to insensitivity to the people’s genuine concerns, the instances of misgovernance are many. An effort to invoke citizenship and its proof by imposing newer burdens on the public could only be a deceptive attempt to reap electoral gains by hushing up the failures in governance. No regime that institutionalises its suspicion about its own people or divides people can ever offer good governance.
A political reading of the judgement in Sabitri Dey teaches us such larger lessons. We the people are now in the perilous gulf between the State and statelessness.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)