File photo: Supreme Court of India
NEW DELHI: Observing that the consequence of a person being declared a foreign national is huge and may lead to detention, deportation, separation from family and even possibly leave them stateless, Supreme Court Monday said determination of citizenship must be carried out through a “fair, lawful and reasonable” process even as it underscored that the government has legitimate and compelling interest in ensuring persons not legally entitled to claim Indian citizenship do not secure such status by misusing the process.A bench of Justices Vikram Nath and Sandeep Mehta found fault with the procedure adopted by Foreigners Tribunals and Guwahati high court in declaring 27 people as foreign nationals, and quashed orders, many of which were passed without hearing those affected. It directed the tribunals to give them a fresh hearing and decide the cases.The bench said Section 9 of Foreigners Act places the burden upon the person to prove he or she is not a foreigner but observed that “the existence of a statutory burden under Section 9 cannot be read to mean a tribunal is relieved of its own obligation to conduct a lawful adjudication”.”Section 9 does not authorise a mechanical declaration,” it said, adding that it “does not exclude the principles of natural justice”.
Tribunals must give chance to produce evidence: Supreme Court
The issue is not whether a tribunal is powerless to proceed ex parte in every case. The narrower and more important question is whether an ex parte or effectively ex parte proceeding can result in a mechanical declaration of foreigner status without a tribunal satisfying itself that the minimum requirements of lawful and fair adjudication have been met, Supreme Court said. It said as per statutory scheme, the person seeking citizenship carries the burden of proving that he or she is not a foreigner and a “tribunal must ensure a fair procedure, meaningful notice, consideration of material, and a reasoned opinion. These features are not in conflict”.“The statutory burden placed upon the proceedee operates only after the proceeding is lawfully initiated and after the proceedee is placed in a position to understand the case against him or her. The burden cannot be shifted in a vacuum. A person cannot be expected to prove the negative without being told, with reasonable clarity, the material basis on which he or she is alleged to be a foreigner,” it said.“The protection of equality before law, equal protection of laws, life and personal liberty is, therefore, available to every person within the territory of India. A person proceeded against before a foreigners tribunal may ultimately fail to establish Indian citizenship, but the process by which such determination is made must still satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness,” the court said.“The person proceeded against is often required to establish facts relating to ancestry, residence, identity and family linkage through old public documents. Such a person cannot be expected to discharge the statutory burden under Section 9 unless the main grounds of the allegation are disclosed and a meaningful opportunity is afforded to file a response and produce evidence. The opportunity contemplated by Paragraph 3 of the 1964 Order must therefore be an effective opportunity, and not a merely formal one,” it said.
