Section 9 of The Foreigners Act, 1946

Context:

The Supreme Court declared Md Rahim Ali, an Assam resident, to be a citizen of India, overturning a Foreigners’ Tribunal (FT) decision that had previously declared him a foreigner due to minor discrepancies in his documents (Source: IE).

Judgment Significance:

• Alleviating Anxieties: This judgment is expected to alleviate concerns arising from the Citizenship (Amendment) Act, 2019, and the proposal for a nationwide National Register of Citizens (NRC).
• Observations on Section 9: The judgment made important observations regarding Section 9 of The Foreigners Act of 1946, which places the burden of proof on the person alleged to be a foreigner.

Key Elements of the Judgment:

• Burden of Proof: The burden of proof will be discharged only after the state shares the material on which the allegation is founded.
• Natural Justice: Supplying this material is part of the natural justice principle, audi alteram partem (no one shall be condemned unheard).
• Proceedings Initiation: Authorities cannot initiate proceedings without basic or primary material, ensuring they do not act arbitrarily.

Basis of the Judgment:

• Mukesh Singh vs State (2020): The Supreme Court stated that even in cases of a reverse burden of proof, the initial burden on the prosecution must be satisfied.
• Noor Aga vs State of Punjab (2008): The prosecution must first prove some basic facts, even in reverse burden of proof cases.
• Criminal Jurisprudence: The principle that the more serious the offence, the stricter the degree of proof required.

Foreigners’ Tribunals (FTs):

• Establishment: Originally established under the Foreigners Act of 1946. Recognized in 1964 by an executive order of the Home Ministry.
• Definition: Under Section 2(a) of the 1946 Act, “a foreigner means a person who is not a citizen of India.”
• Applicability: While applicable across India, FTs are currently operational only in Assam. In other states, local courts handle such cases under the Foreigners Act of 1946.
• Post-2019 Amendment: State and central governments can establish FTs following the 2019 amendment to the Foreigners (Tribunals) Order.

Concerns in Assam:

• Doubtful Voters (D Voters): In 1997 and subsequent years, about 3 lakh people in Assam were declared D Voters without any inquiry or notice.
• Notice Requirements: Paragraph 3(1) of the Foreigners’ Tribunal Order of 1964 mandates mentioning “main grounds” in notices. However, notices often lack these grounds, leaving people to defend themselves without knowing the charges.
• Ex Parte Declarations: Until March 2019, 1.17 lakh people were declared foreigners, including 63,959 ex parte declarations.

Related Legislation:

• Citizenship Amendment Act (CAA), 2019: The CAA provides a path to Indian citizenship for certain persecuted minorities from neighboring countries, but it has sparked concerns about its implications in conjunction with the NRC and the operations of Foreigners’ Tribunals.