New Delhi [India], July 14 (HBTV): The Supreme Court has observed that the consequences of declaring a person a foreign national are severe and may lead to detention, deportation, separation from family and, in some cases, statelessness. The court said that the determination of citizenship must be carried out through a 'fair, lawful and reasonable' process, while also recognising that the government has a legitimate and compelling interest in ensuring that persons not legally entitled to Indian citizenship do not obtain such status by misusing the process.
A bench of Justices Vikram Nath and Sandeep Mehta found fault with the procedure adopted by the Foreigners Tribunals and the Guwahati High Court in declaring 27 people as foreign nationals. The bench quashed the orders, many of which had been passed without hearing those affected, and directed the tribunals to conduct fresh hearings and decide the cases.
The bench said Section 9 of the Foreigners Act places the burden on the person concerned to prove that he or she is not a foreigner. However, it 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,' the bench said, adding that it 'does not exclude the principles of natural justice'.
The Supreme Court said the issue is not whether a tribunal is powerless to proceed ex parte in every case. Rather, the more important question is 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 have been met.
The court said that under the statutory scheme, the person claiming citizenship bears the burden of proving that he or she is not a foreigner, and that 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,' the court 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,' it added.
'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,' the court said.
(Inputs from Times of India)