In observations that could have a bearing on other cases where people have had, or are in the process of having, their citizenship scrutinised in Assam’s Foreigners Tribunals, a Supreme Court Bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah questioned the basis on which Rahim Ali’s Citizenship had first come into question in 2004.

In July that year, a sub-inspector from the Nalbari police station in Assam visited Rahim Ali’s home, informed him that his citizenship was under question, and asked him to show documents proving his Indian nationality. Rahim told him he did not have the documents at hand and sought seven days’ time. When he was unable to produce the documents, the case made its way to a foreigner’s tribunal in 2006.

With Rahim failing to turn up in court, which he attributed to his health, the tribunal passed an ex-parte order declaring that he had illegally migrated to Assam from Bangladesh after March 25, 1971 – the cut-off date for citizenship in Assam. The tribunal held that he “had failed to discharge his burden” under Section 9 of the Foreigners Act and failed to prove that he is not a foreigner.

The section that the tribunal referred to states that if a question arises on whether or not a person is a foreigner, the burden of proof lies on that person. Scrutinising the proceedings that took place 20 years ago, the Supreme Court pointed to the section of the 1964 Foreigners (Tribunals) Order, which states that the tribunal “shall serve on the person… a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in support of his case”.

In Rahim Ali’s case, the sub-inspector had told the tribunal that he had acted on directions by the then Superintendent of Police. It had been alleged by the police that he was from Bangladesh’s Mymensingh district and had migrated after March 25, 1971.

The court questioned what warranted this direction in the first place. “The pleadings and the record are silent as to what was the basis of the SP’s direction. What materials or information had come to his knowledge or possession that warranted his direction? Obviously, the State cannot proceed in such a manner. Neither can we as a court countenance such approach,” states the judgment.

“It is for the authorities concerned to have in their knowledge or possession some material basis or information to suspect that a person is a foreigner and not an Indian. In the present case… nothing has come on record to indicate even an iota of evidence against him, except for the bald allegation that he had illegally migrated to India post 25.03.1971,” said the judgment, adding that even information on who made the Allegation is not known or disclosed.

“It needs no reiteration that a person charged or accused would generally not be able to prove to the negative, if he/she is not aware of the evidence/material against him/her which leads to the person being labeled suspect. Ipso facto, just an allegation/accusation cannot lead to shifting of the burden to the accused, unless he/she is confronted with the allegation as also the material backing such allegation… In the absence of the basic/primary material, it cannot be left to the untrammeled or arbitrary discretion of the authorities to initiate proceedings, which have life-altering and very serious consequences for the person, basis hearsay or bald and vague allegation(s),” it states.

The court’s observations are significant given how widespread this manner of initiating citizenship proceedings has been in Assam, which has been roiled by tensions over the question of “illegal immigration” and citizenship for decades.

Calling it a “watershed judgment in citizenship jurisprudence”, Aman Wadud, a lawyer who has handled a number of citizenship cases, stated that the “same modus operandi can be seen in case after case”.

“We have been talking about how randomly Indian citizens are accused of being foreigners. This is probably the first judicial decision on how random the process is, and it explains clearly that we need to go right to the core of the matter, the very initiation of the proceeding before the tribunal… In case after case, we have been saying that there is no investigation whatsoever… The judgment clearly explains that there should be some material to accuse a person of being an illegal migrant and not just randomly single them out,” he said.

Rahim Ali had faced a Foreigners Tribunal again in 2017, when in the course of hearing this case, the Supreme Court had directed the tribunal to determine his case “on merit”. He had again been declared a foreigner by the tribunal, which had pointed to discrepancies in spellings and dates in some of the documents that he had produced.

The Supreme Court judgment makes sharp observations on this as well, stating that these discrepancies were “minor” and that Rahim Ali had produced evidence that his parents had been residents of India far before 1966.

“Variation in name spelling is not a foreign phenomenon in preparation of the Electoral Roll… Moreover, in our country, sometimes a title is prefixed or suffixed to a name such that the same person may be known also by one or two aliases. The Tribunal seems to have been totally oblivious to all this,” states the judgment.

This observation is significant as well because discrepancies in spelling and the use of different aliases in documents and the electoral roll are a widespread ground for people being declared foreigners by tribunals.

“It is not uncommon throughout India that different spellings may be written in the regional/vernacular language and in English. Such/same person will have a differently spelled name in English and the local language,” states the judgment.