By Our Correspondent
NEW DELHI – In a landmark judgment on the scrutiny of people’s citizenship, the Supreme Court has restored citizenship of a Muslim man belonging to Assam 12 years after a tribunal in the north-eastern state declared him to be a foreigner. The apex court ruled that a “grave miscarriage of justice” had taken place in the case.
In its verdict delivered on July 11, a two-judge Bench of the Supreme Court said that just an allegation or accusation cannot lead to shifting of the burden to the accused suspected to be a foreigner. “Section 9 of the Foreigners Act does not empower authorities to pick a person at random, knock at his/her/their door and tell him/ her/they/them, ‘We suspect you of being a foreigner’, and then rest easy”, the court observed.
The judgment with a significant bearing on other similar cases where the citizenship of genuine people is being questioned by the authorities came from a Bench comprising Justice Vikram Nath and Justice Ahsanuddin Amanullah. The verdict pertained to Mohammed Rahim Ali alias Abdur Rahim, whose citizenship had first come into question in 2004.
In July 2004, a sub-inspector from the Nalbari police station in Assam visited Rahim Ali’s home, informed him that his citizenship was under question, and asked him to show documents proving his Indian nationality. Rahim told him he did not have the documents at hand and sought seven days’ time. When he was unable to produce the documents, the case made its way to a Foreigner’s Tribunal in 2006.
With Rahim failing to turn up in court, which he attributed to his health, the tribunal passed an ex-parte order declaring that he had illegally migrated to Assam from Bangladesh after March 25, 1971 – the cut- off date for citizenship in Assam. The tribunal held that he had failed to discharge his burden under Section 9 of the Foreigners Act and failed to prove that he is not a foreigner.
The section relied upon by the tribunal provides that if a question arises on whether or not a person is a foreigner, the burden of proof lies on that person. Making a review the proceedings that took place 20 years ago, the Supreme Court pointed to the section of the Foreigners (Tribunals) Order, 1964, which states that the tribunal “shall serve on the person a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in support of his case”.
In Rahim Ali’s case, the sub-inspector had told the tribunal that he had acted on directions by the then Superintendent of Police. It had been alleged by the police that he was from Bangladesh’s Mymensingh district and had migrated after March 25, 1971.
The court observed that the pleadings and record were silent regarding the basis on which the police in 2004 had initiated proceedings against Rahim Ali. “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. It is also not know as to who, if any person, had alleged that the appellant had migrated to India after 25.03.1971 from Village – Dorijahangirpur, Police Station – Torail, District – Mymansingh in Bangladesh,” the court said.
The court further observed that it was incumbent upon the police to provide details as to how it had received the information that Ali had come to Assam from Bangladesh. “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,” the court said.
Rahim Ali had earlier challenged the decision of Foreigners Tribunal before the Gauhati High Court. Though the High Court had initially stayed the operation of tribunal’s order, his plea was dismissed in November 2015. This led to the instant appeal before the Supreme Court.
Having found the material for suspicion about citizenship absent in the case, the court observed that the State cannot proceed in such manner and neither can the top court countenance such approach. “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,” the court said.
The court also said that mere allegation, as vague as to mechanically reproduce simply the words which mirror the provisions of law, cannot be permitted. The court asserted that the person suspected has to be made available of the information and material available against him.
“In the absence of the basic/primary material, it cannot be left to the untrammelled or arbitrary discretion of the authorities to initiate proceedings, which have life altering and very serious consequences for the person, basis hearsay or bald and vague allegation(s),” the judgment stated.
The judgment has assumed significance in view of a large number of citizenship proceedings going on in Assam, which has witnessed tension over the issue of alleged migration of Muslims from Bangladesh for the past several decades. Aman Wadud, a Guwahati-based lawyer, who has dealt with several citizenship cases, described it as a watershed judgment in the citizenship jurisprudence, while pointing out that the government authorities were resorting to the same tactics in all the cases.
The court also clarified that it would not imply that strict proof of allegation about lack of citizenship has to be given to the accused person. Only the material on which such allegation is founded has to be shared with the person, it said. The evidence produced before the tribunal had been disbelieved only on the ground of mismatch of actual English spelling of the names and discrepancy in dates.
In this regard, the Bench opined that a casual entry by the enumerators cannot visit the appellant with
dire consequences. The 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. The Court also directed that a copy of the judgment be circulated to all Foreigners’ Tribunals
in Assam.
