The Supreme Court has ruled that Foreigners Tribunals cannot mechanically declare a person to be a foreigner merely because proceedings were conducted ex parte or effectively became ex parte. Holding that such determinations carry grave civil consequences—including detention, deportation and the risk of statelessness—the Court set aside a batch of judgments of the Gauhati High Court and corresponding opinions of Foreigners Tribunals and remitted all matters for fresh adjudication. 

A Bench comprising Justice Vikram Nath and Justice Sandeep Mehta delivered the judgment while deciding a batch of appeals arising from Assam involving persons who had been declared foreigners by various Foreigners Tribunals or the erstwhile Illegal Migrants (Determination) Tribunals. The Court noted that although the factual circumstances differed across the cases, they all raised a common legal issue regarding the validity of ex parte declarations of foreigner status. 

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The appeals stemmed from proceedings before Foreigners Tribunals in Assam where the appellants had either failed to appear, had participated initially but later defaulted, or where the High Court had itself examined documentary evidence after ex parte opinions had been rendered by the Tribunals. In every case, the Tribunal had declared the concerned persons to be foreigners, and those findings had been affirmed by the Gauhati High Court. 

The Supreme Court grouped the cases into three categories cases where the individuals never appeared despite recorded service of notice; cases where the High Court undertook appreciation of evidence while examining writ petitions against ex parte Tribunal orders; and cases where the individuals had initially participated but the proceedings ultimately became ex parte after they stopped appearing. 

The principal issue before the Court was whether an opinion declaring a person to be a foreigner under the Foreigners Act, 1946 could be sustained where the proceedings before the Tribunal were ex parte or effectively ex parte without meaningful scrutiny of service of notice, opportunity of hearing, the material forming the basis of the reference and the evidence produced by the State.

The Court clarified that the issue was not whether a Tribunal possesses the power to proceed ex parte. Rather, it was whether such proceedings could culminate in a mechanical declaration of foreigner status without satisfying the minimum requirements of lawful adjudication and procedural fairness. 

The Court examined Section 9 of the Foreigners Act, 1946, which places the burden upon the proceedee to establish that he or she is not a foreigner. However, it held that the statutory burden cannot be interpreted as relieving the Tribunal of its duty to conduct an independent adjudication.

According to the Court, Section 9 does not authorise automatic acceptance of the reference merely because the proceedee fails to appear. The Tribunal must still examine whether the State’s material supports the allegation and whether the statutory process has been properly followed. 

The judgment further observed that Paragraph 3 of the Foreigners (Tribunals) Order, 1964 requires that the person concerned must receive the “main grounds” on which the allegation is founded, be afforded a reasonable opportunity to reply and produce evidence, and that the Tribunal must render a reasoned opinion after considering the evidence produced by both sides. 

The Supreme Court stressed that even where proceedings are conducted ex parte, the Tribunal continues to function as a quasi-judicial authority.

It held that the Tribunal must independently verify whether notice was duly served; whether the main grounds of the allegation were disclosed; whether the State produced sufficient evidence; whether the material justifies declaring the proceedee to be a foreigner; and whether reasons have been recorded in support of its conclusion.

The Court observed that absence of the proceedee cannot itself constitute proof of the allegation. The Tribunal must continue to discharge its adjudicatory responsibility by applying its mind to the evidence before it. 

The judgment places considerable emphasis on Articles 14 and 21 of the Constitution.

The Bench observed that both provisions protect “any person” and “no person,” thereby extending constitutional guarantees even to individuals whose citizenship is under dispute. It reiterated that although foreigners do not enjoy every fundamental right available to citizens, they remain entitled to equality before law and protection of life and personal liberty.

Relying upon earlier decisions including Md. Rahim Ali, Louis De Raedt, National Human Rights Commission v. State of Arunachal Pradesh, Maneka Gandhi, A.K. Kraipak and Canara Bank v. Debasis Das, the Court held that proceedings before Foreigners Tribunals must satisfy the principles of natural justice, fairness and reasoned decision-making. 

In cases where the Gauhati High Court itself appreciated documentary evidence while examining writ petitions against ex parte Tribunal opinions, the Supreme Court held that such an exercise cannot substitute the statutory adjudication contemplated under the Foreigners (Tribunals) Order.

The Court observed that factual determination regarding nationality—including examination of ancestry documents, electoral rolls, family linkage and residence records—must ordinarily be undertaken by the Tribunal itself after both parties are afforded an opportunity to lead evidence. 

After analysing all three categories of cases, the Supreme Court concluded that every matter deserved to be remitted for fresh adjudication.

The Bench clarified that this should not be viewed as condoning the conduct of persons who had defaulted in appearing before the Tribunal. Instead, it was granting only one final opportunity because of the severe consequences that follow a declaration of foreigner status. 

Allowing all the appeals, the Court issued comprehensive directions all judgments of the Gauhati High Court and corresponding opinions of the Foreigners Tribunals stand set aside; the matters are remitted to the respective Tribunals for fresh adjudication; the appellants must appear before the concerned Tribunals within four weeks; they will be permitted to file written statements, documents and affidavits within the time fixed by the Tribunal; the State will also be free to produce evidence; no unnecessary adjournments shall be granted; if the appellants fail to cooperate, the Tribunals may proceed according to law; no coercive action shall be taken on the basis of the earlier opinions, subject to the appellants appearing and cooperating with the proceedings; and the Tribunals should endeavour to conclude the fresh proceedings within six months from the appellants’ first appearance.

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