SC: Citizenship Must Follow Fair Legal Process

It gave verdicts in 27 old cases that had stayed dormant in Assam for 27 years that stoked fears of the Supreme Court's decision on a citizen's citizenship being hasty and one-sided.

A Batch of Cases, Two Decades in the Making

A bench of Justices Vikram Nath and Sandeep Mehta quashed the declaration of 27 appellants as foreigners on Monday by the Gauhati High Court.

The underlying case in Swasthi Dey versus Union of India was of the people who had not appeared before the tribunal after being served with the notices either which were brought by the rough handling of the officers or the questions were asked about 23 years after the original order of the tribunal.

Previously, the High Court had relied on Section 9 of the Foreigners Act and found that the onus of proving Indian citizenship would be on the person concerned and not on the Government, even in the course of ex parte proceedings.

What the Apex Court Said

In a finding that overturned that reasoning, the bench said "citizenship and foreigner status [is] situated in a zone of high constitutional and legal significance" and remanded all 27 appeals for fresh hearing before the respective Foreigners Tribunals.

Notably, the Court did not discharge the burden of proof of the appellants. It clarified that the burden of the statutory provision in Section 9 of the Foreigners Act, 1946, continued to remain on the foreigner and the tribunals were required to adjudicate the matters without reference to the previous findings.

The judges weighed this against the interests of the State, which has a legitimate and compelling interest in ensuring that people not entitled to Indian citizenship do not "achieve" Indian citizenship through misuse of process, false claim, or by allowing for delays.

Meanwhile, the bench pointed out that remand does not mean relief and it is only to ensure that the serious consequence of being declared an alien follow an adjudication, which satisfies the requirement of the Foreigners Act, the Foreigners (Tribunals) Order, 1964 and the constitutional requirement of fairness.

It is not just Assam that is affected by the issue

The decision comes at a time when the public is having a re-examination of the definition of Indian citizenship. A controversy — that is, a disagreement that had stirred a lot of heated comments on social media — broke out last month when the Ministry of External Affairs clarified that a passport is not a citizenship document but a travel document.

It was an event that was reminiscent of previous judicial rulings: Courts have previously held that identity papers like Aadhaar would not, on their own, prove citizenship. The Bombay High Court has also held that the possession of an Aadhaar card or PAN card or voter ID or passport is not sufficient to determine the issue in a court of law.

The Road Ahead

The 27 cases are now being sent back to the Foreigners Tribunals, a set of courts that decide who is a foreigner and who is not in Assam, a state where citizenship litigation has built up grievance and anxiety over the decades.

The Supreme Court's lessons on procedural fairness, without eroding the burden of proof, establish a blueprint that will shape pending and future proceedings in the tribunals in the state.