Supreme Court: Fair process non-negotiable for citizenship rulings

The Supreme Court on Monday held that the determination of citizenship and foreigner status must be undertaken through a 'fair, lawful and reasoned' process, as it set aside 27 Gauhati High Court judgments that had declared individuals as foreigners. The cases were remanded to the respective Foreigners Tribunals for fresh adjudication.

A Bench of Justices Vikram Nath and Sandeep Mehta observed that while the state has a legitimate interest in ensuring that persons legally ineligible for Indian citizenship do not obtain such status through 'false claims', the grave consequence of being declared a foreigner must follow a procedure that adheres to constitutional guarantees.

'A state action which is arbitrary cannot claim the protection of law merely because it is clothed in statutory form. A proceeding which may result in a person being declared a foreigner cannot be sustained if the procedure adopted is mechanical, one-sided, or devoid of application of mind,' the judgment, authored by Justice Nath, said.

The High Court had dismissed appeals against the orders of Foreigners Tribunals declaring the appellants to be foreigners, noting that none of the appellants had appeared before the tribunals despite having been served notices. The High Court had observed that, in the absence of any written statement, documents or evidence from the appellants, the tribunals had 'no option' but to affirm the references.

The apex court, however, clarified that the remand should not be construed as an affirmation of the appellants' claim to Indian citizenship. Rather, it said, the exercise was intended solely to ensure that the serious civil consequences of being declared a foreigner flow only from an adjudication that is legally sustainable and consistent with the principles of fairness.

'The remand being directed is not intended to confer any equity in favour of a person who is unable to establish his or her claim. It is only to ensure that the serious consequence of being declared a foreigner follows from an adjudication which satisfies the requirements of the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, and the constitutional mandate of fairness,' the Bench observed.

Accordingly, the Bench set aside both the High Court judgments and the corresponding opinions of the Foreigners Tribunals concerned, directing the tribunals to decide the matters afresh without being influenced by their earlier findings or those of the High Court. It said the fresh adjudication must involve an independent assessment of the evidence and the rival claims in accordance with law and should, as far as possible, be completed within six months.

The court further directed that no coercive steps be taken against the appellants until the Foreigners Tribunals render fresh opinions. It also directed the appellants to appear before the tribunals within four weeks, cooperate with the proceedings and refrain from seeking unnecessary adjournments.

Justice Nath acknowledged that questions of citizenship and foreigner status occupy a field of 'high constitutional and legal significance', particularly because a declaration that a person is a foreigner carries far more than ordinary civil consequences. Such a finding, the judge noted, may result in detention, deportation, separation from family and community, and even 'statelessness'.

'Even in a case where the proceedee fails to appear despite service, the Tribunal continues to act as a quasi-judicial forum. It must satisfy itself that notice was duly served in accordance with law. It must examine whether the main grounds were made available to the proceedee,' the judgment added.