AS PER data revealed in the Parliament in 2019, between 1985 to February 28, 2019, the Foreigners Tribunals (‘FTs’) in Assam have declared 63,959 persons as foreigners in ex-parte proceedings. This means that till 2019, FTs declared 63,959 persons as illegal migrants in terms of Section 6A of the Citizenship Act, 1955, without hearing their case.
However, serious contentions can be raised against whether FTs in Assam can at all declare a person as a foreigner in an ex-parte proceeding in terms of the process as it presently follows.
How a case is initiated in the FT
The case is referred to the FTs through three routes:
If the Electoral Registration Officer (‘ERO’) expresses suspicion regarding the inclusion of a name in the electoral roll, it directs for an on-spot verification by the Local Verification Officer. Based on this report, the ERO marks the person as ‘doubtful’ in electoral rolls and refers the case to the Superintendent of Police (Border) which, in turn, refers the case to the respective FT in its jurisdiction.
Similarly, if the Superintendent of Police (Border) has doubt about the nationality of a person, it directs an Inquiry Officer to conduct verification and submit a report, based on which, it refers the case to the FT.
Cases at the FT are also transferred from the Illegal Migrants Determination Tribunal following the Supreme Court’s judgement in Sarbananda Sonowal v. Union of India (2005) in which it declared the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 to be ultra vires the Constitution of India.
These references by the referral authority also cannot be mechanical. In State of Assam and v. Moslem Mondal (2013), the full bench of the Gauhati High Court noted that the referral authority “has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference.” .
More recently, the Supreme Court in a landmark judgement in Md. Rahim Ali v The State of Assam (2024) through which it restored the citizenship of a person declared foreigner in an ex-parte proceeding after two decades, has held that even for initiating an inquiry the authorities have to have in their knowledge or possession, some material basis or information to suspect that a person is a foreigner and not an Indian. Mere allegation that someone is an illegal migrant is not enough to impose the Section 9 burden in the Foreigners Act, 1946*.
Notice issued by the Tribunal
Once the case is received by the FT on reference, the judicial pronouncements further cast a responsibility on the tribunal to prima facie satisfy itself about the existence of the ‘grounds’ that the proceedee is a foreigner before issuing notice to the proceedee.
On the service of the notice with a copy of ‘main grounds’, if the proceedee does not record their appearance by filling a written statement, the FT declares the person as a foreigner in an ex-parte proceeding. There are rare cases in which tribunals record the deposition of the Inquiry Officer or try to legally examine the report submitted by the Superintendent of Police (Border).
Presently, following the full bench judgement of the Gauhati High Court in Moslem Mondal (2013), it follows that the Section 9 burden is imposed on the proceedee once the notice is issued. Thus, a non-appearance of the person before the tribunal, which could be for many reasons beginning from incomprehensibility of the notice to inability to pay legal fees, is enough to declare them as an illegal migrant. This practice militates against the idea of fair trial, reasonable opportunity, and the recent judgement of the Supreme Court in Md. Rahim Ali (2024).
Brief history of adjudicating ex-parte
In Sangram Singh v. Election Tribunal, Kotah (1955), a three judge bench of the Supreme Court defined the phrase “ex-parte” as:
“The whole question is, what do these words mean? Judicial opinion is sharply divided about this. On the one side is the view propounded by Wallace, J. in Venkatasuhbiah v. Lakshminarasimham(') that ex parte merely means in the absence of the other party, and on the other side is the view of O'Sullivan, J., in Hariram v. Prihhdas(') that it means that the Court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance. The remaining decisions, and there are many of them, take one or the other of those two views.” (emphasis added)
In 2010, in an appeal against the order of the single judge of the Gauhati High Court dismissing the prayer for setting aside an ex-parte order by the Foreigner Tribunal, a Division Bench of the Gauhati High Court, in Moslem Mondal. v. Union of India (2010) first held that the tribunal cannot render an opinion that the proceedee is a foreigner merely because the proceedee does not respond to the notice. The omission to respond to such a notice would deny him the opportunity of placing his case before the Tribunal. The bench noted that it will not, “as a corollary, absolve the State of its burden to prove the truth of the grounds on which it claims the proceedee to be a foreigner.”
Further, if the State establishes the grounds before the Tribunal by bringing such materials, which would establish the truth of the assertions made in the 'reference', the Tribunal would be free to give its opinion if it finds that the grounds are sufficient to hold the proceedee a foreigner. The evidence to be given by the State may remain confined to the grounds on which the State rests its case and it will have no responsibility to prove (apart from the grounds, which the State must prove) that the proceedee is not an Indian citizen. Whether such grounds are sufficient to interfere that the proceedee is or is not a foreigner, however, would remain within the ambit of the powers of the Tribunal, to determine. The bench noted that “when it is stated that the 'burden of proof' is on a foreigner to prove that he is an Indian citizen, what it means is that if the proceedee claims to be an Indian citizen, he has the burden to establish his claim of being an Indian Citizen, because the State is not expected to prove a negative fact, namely, that the proceedee is not an Indian Citizen.”
The Assam government filed a review of the above judgement, eventually leading to the full bench judgement of the Gauhati High Court in Moslem Mondal (2013) which restricted the findings of the above judgement to that particular case and held that the ex-parte order can only be set aside if the proceedee could demonstrate the existence of the special/exceptional circumstances. Otherwise the very purpose of enacting the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 would be frustrated.
Fair trial vis a vis reasonable opportunity
The critical reading of the recent judgement by the Supreme Court in Md Rahim Ali (2024) overturns parts of the full bench judgement of the Gauhati High Court in Moslem Mondal (2013). Relying on its previous decision in Union of India v. Ghaus Mohammad (1961), the top Court also held that the Section 9 burden only kicks in after the foundational facts have been established by the referring authority before the tribunal. In the procedure adopted by the tribunal, it means that admissible evidence must be led by the State to establish foundational facts as per the law of evidence.
These foundational facts must prove two things:
a) the person is not an Indian national
b) establish or identify his or her country of origin.
Once these facts have been established only then can the burden shift on the proceedee as per Section 9 of the Foreigner’s Act, 1946.
A justiciable way out?
If on the service of notice and a copy of main grounds, the proceedee fails to record his appearance, the FT can send fresh summons to the proceedee as per Section 4 of the Foreigners (Tribunals) Order, 1964, and thereafter, start the proceedings by legally examining the report submitted by the Superintendent of Police (Border).
In the absence of the proceedee, the tribunal can appoint an amicus to cross-examine all the prosecution witnesses presented by the Referral Authority and use its power conferred under the Foreigners (Tribunals) Order, 1964 to summon gaonburas and electoral officers. Only after that the tribunal, based on the materials, may pass an order.
Since there is no provision of Appeal in the Foreigners (Tribunals) Order, 1964, the ex-parte order passed in the above fashion can be sent to the High Court for confirmation as it is statutorily done for death penalty cases.
After all, an adverse order of a foreigners tribunal against a citizen in a functioning democracy is akin to a civil death. Therefore, higher standards must be followed. Only this would allow the Referral Authority to be held accountable and ensure some balance to be restored.
The above suggested procedure which could be followed by the tribunal would ensure that no citizen is treated with indignity and stripped of their citizenship in their own country. In Assam Sanmilita Mahasangha v. Union of India (2014), through which the Supreme Court monitored the NRC exercise in Assam and among other things directed for setting up the monitoring bench of FTs, Justice Rohinton Nariman quotes a verse from the Bible: “A Prophet is without honor in his country”.
Indeed, unless a fairer procedure for adjudication of citizenship status is adopted by the courts, citizens will continue to live without honor in this country.
