Section 9 of The Foreigners Act, 1946

GS2 (Polity & Citizenship)

The Supreme Court overturned a Foreigners’ Tribunal (FT) decision that had declared Md Rahim Ali, an Assam resident, as a foreigner. The tribunal’s ruling was based on minor inconsistencies in the spelling and dates on his documents.

Significance of the Judgment

• This ruling provides relief to many individuals who have concerns regarding the Citizenship (Amendment) Act, 2019, and the proposed nationwide National Register of Citizens (NRC).
• The judgment offered key insights on Section 9 of The Foreigners Act, 1946, which shifts the burden of proof onto individuals accused of being foreigners.

Key Takeaways from the Judgment

• The burden of proof can only be imposed on the accused once the state has provided all relevant materials forming the basis of the allegation.
• Ensuring the accused has access to such materials aligns with the principle of natural justice (audi alteram partem)—meaning no one should be condemned without being heard.
• The authorities cannot initiate proceedings arbitrarily without foundational evidence.

Legal Basis for the Judgment

• Mukesh Singh vs. State (2020): The Supreme Court ruled that even in cases where the burden of proof is reversed, the prosecution must first establish a foundational basis for the allegation.
• Noor Aga vs. State of Punjab (2008): Reinforced the requirement that the prosecution must present some basic evidence even when the burden of proof is reversed.
• Criminal Jurisprudence: The ruling reiterated that for serious allegations, the level of required proof should be significantly high.

Foreigners’ Tribunals (FTs)

• Established under the Foreigners Act, 1946, these tribunals assess cases where individuals are suspected of being foreigners.
• Article 323B of the Indian Constitution allows legislatures to create tribunals by law.
• Originally set up through a 1964 executive order from the Home Ministry, these tribunals were later recognized officially.
• Definition of a Foreigner: As per Section 2(a) of the 1946 Act, a foreigner is defined as any individual who is not a citizen of India.
• While the Act applies nationwide, FTs currently function only in Assam. Other states handle similar cases through local courts under the same law.
• After the 2019 amendment to the Foreigners (Tribunals) Order, both central and state governments gained the authority to establish new tribunals.

Concerns in Assam

• Doubtful Voters (D-Voters): In 1997 and subsequent years, authorities categorized around three lakh individuals as D-Voters without conducting proper inquiries or issuing notices.
• Violation of Tribunal Order, 1964:
  • As per Paragraph 3(1) of the Foreigners’ Tribunal Order, 1964, all notices must clearly state the primary reasons for suspecting someone as a foreigner.
  • However, many tribunal notices fail to mention specific grounds, forcing people to defend themselves without knowing the charges against them.
• Declaring People as Foreigners:
  • By March 2019, a total of 1.17 lakh individuals had been declared foreigners in Assam.
  • Out of these, 63,959 were declared ex parte (without being present for their hearing).