Can a person be declared a foreigner without a fair hearing? | Explained
The Supreme Court on Monday (July 13, 2026) held that the determination of citizenship and foreigner status must follow a “fair, lawful and reasoned” process
The Supreme Court on Monday (July 13, 2026) held that the determination of citizenship and foreigner status must follow a “fair, lawful and reasoned” process, as it set aside a batch of Gauhati High Court judgments upholding orders that declared the appellants to be foreigners and remanded the cases to the concerned Foreigners Tribunals for fresh adjudication. A Bench of Justices Vikram Nath and Sandeep Mehta observed that while the State has a legitimate interest in identifying foreigners, “the determination of such status must be made through a process which is fair, lawful and reasoned.” What is the case about? The case arose out of proceedings before the Foreigners Tribunals in the State of Assam and, in certain cases, before the erstwhile Illegal Migrants (Determination) Tribunals. In all these matters, the appellants had been declared foreigners, and the said opinions had been affirmed by the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh at Guwahati. The common grievance before the Supreme Court was that these declarations had been made through ex parte proceedings or proceedings that had effectively become ex parte, and the statutory determination of their status was made without a full and meaningful opportunity for the appellants to contest the allegations against them. The principal question before the Court was whether an ex parte or effectively ex parte proceeding can result in a mechanical declaration of foreigner status without the Tribunal satisfying itself that the minimum requirements of lawful and fair adjudication had been met, including a meaningful examination of the service of notice, the opportunity of hearing, the material forming the basis of the reference, and the evidence adduced by the State.
What was the ruling? The Court held that even where the proceeding is ex parte, the Tribunal is still required to perform an adjudicatory function. The non-appearance of the proceedee may deprive him or her of the opportunity to lead evidence, but it does not relieve the Tribunal of the obligation to examine whether the reference is supported by the material produced by the State. The Court observed that the appellants had been declared foreigners without any effective contest before the Tribunal and remanded the matters to the concerned Tribunals for fresh adjudication so that the appellants may produce their material, the State may adduce its evidence, and the Tribunal may return a fresh opinion in accordance with law. Referring to Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964 the Court observed: “The statutory scheme, therefore, has two complementary features. The first is that the proceedee carries the burden of proving that he or she is not a foreigner. The second is that the Tribunal must ensure a fair procedure, meaningful notice, consideration of material, and a reasoned opinion. These features are not in conflict. They operate together. The burden under Section 9 of the 1946 Act arises and is discharged within the procedural safeguards of Paragraph 3 of the 1964 Order.” How did the court reach this conclusion? The Court relied on various precedents, including Md. Rahim Ali @ Abdur Rahim v. State of Assam and Others (2024). The Court explained that the burden under Section 9 is not to be understood as permitting the authorities to proceed on a bare allegation or unsupported suspicion.
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