# Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors

- **Citation:** 2024 INSC 511
- **Court:** Supreme Court of India
- **Decided:** 2024-07-11
- **Case number:** Civil Appeal No. 7332 of 2024
- **Bench:** Vikram Nath, Ahsanuddin Amanullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-rahim-ali-abdur-rahim-v-the-state-of-assam-ors-38136
- **Pages:** 34

## Headnote

The Foreigners Tribunal, Nalbari declared the appellant to be a
foreigner on the grounds that he failed to discharge his burden
under Section 9 of the Foreigners Act, 1946.
Headnotes†
Foreigners Act, 1946 - s.9 - Foreigners (Tribunal) Order,
1964 - Illegal Migrants (Determination by Tribunals)
Act, 1982 - The case against the appellant was initiated in
the year 2004 alleging that the appellant illegally migrated
to India after 25.03.1971 from Village Dorijahangirpur, Police
Station - Torail, District Mymansingh, Bangladesh and was
living in Village Kasimpur, Police Station, District-Nalbari
in the State of Assam - The initiation of the case against
the appellant was based on the report submitted by the
Sub-Inspector which in turn was based on the fact that in
his deposition he had stated that upon being directed by the
S.P. (B), Nalbari, he had undertaken an inquiry against the
appellant and asked him to show the documents regarding
his Indian nationality - However, appellant failed to do so -
Reference was made to the Tribunal - By ex-parte order
dated 19.03.2012, the Tribunal held that the appellant had failed
to discharge his burden under Section 9 of the Act and failed
to prove that he is not a foreigner - Aggrieved, appellant filed
writ petition, which was dismissed - Correctness:
Held: Undisputedly, the appellant is not a foreigner recognised
as a national by the law of more than one foreign country -
Thus, the appellant's case would not fall under Section 8 of the
Act - Section 9 of the Act stipulates if in a case not falling under
Section 8 of the Act, any question arises as to whether a person is
or is not a foreigner or is or is not a foreigner of a particular class,
* Author
2330
[2024] 7 S.C.R.
Digital Supreme Court Reports
the person concerned must prove that he/she is not a foreigner or
not a foreigner of that particular class - In the instant case, it was
specifically alleged that the appellant had come to Assam from
Village-Dorijahangirpur, Police Station-Torail, District-Mymansingh
in Bangladesh while making a reference to the Tribunal - Hence,
it was incumbent on the authority making the reference to provide
details as to how it had received such information as also its
bona fide belief of such factum being true - In other words, the
authority had been, as claimed, able to trace the appellant's place
of origin - Surely then, the authority had some material to back its
assertion - The record does not show such material was given either
to the appellant or the Tribunal by the authority - In the absence
of the basic/primary material, it cannot be left to the untrammelled
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) - Under
the garb of and by taking recourse to Section 9 of the Act, the
authority, or for that matter, the Tribunal, cannot give a go-by to
the settled principles of natural justice - Audi alteram partem does
not merely envisage a fair and reasonable opportunity of being
heard - In opinion of this Court, it would encompass within itself
the obligation to share material collected with the person/accused
concerned - The evidence produced before the Tribunal by the
appellant to indicate that his parents had been resident in India
much prior to 01.01.1966 whereas his siblings and he himself
much prior to 25.03.1971, has been disbelieved only on the
ground of mismatch of actual English spelling of the names and
discrepancy in dates - As far as the discrepancy(ies) in dates and
spellings are concerned, this Court is of the view that the same
are minor in nature - The appellant had produced a document
showing that his father and mother had been resident of Village
Dolur Pather since 1965; that his sibling had also been declared
not to be a foreigner by the Tribunal, and; his elder brother and
he were both voters as per the 1985 Electoral Roll relating to 41
Bhabanipur L

## Text

_Characters 0–39,841 of 78,637. This is a partial read: ask again with offset=39841 for what follows._

[2024] 7 S.C.R. 2329 : 2024 INSC 511
Md. Rahim Ali @ Abdur Rahim
v.
The State of Assam & Ors.
(Civil Appeal No. 7332 of 2024)
11 July 2024
[Vikram Nath and Ahsanuddin Amanullah,* JJ.]
Issue for Consideration
The Foreigners Tribunal, Nalbari declared the appellant to be a
foreigner on the grounds that he failed to discharge his burden
under Section 9 of the Foreigners Act, 1946.
Headnotes†
Foreigners Act, 1946 - s.9 - Foreigners (Tribunal) Order,
1964 - Illegal Migrants (Determination by Tribunals)
Act, 1982 - The case against the appellant was initiated in
the year 2004 alleging that the appellant illegally migrated
to India after 25.03.1971 from Village Dorijahangirpur, Police
Station - Torail, District Mymansingh, Bangladesh and was
living in Village Kasimpur, Police Station, District-Nalbari
in the State of Assam - The initiation of the case against
the appellant was based on the report submitted by the
Sub-Inspector which in turn was based on the fact that in
his deposition he had stated that upon being directed by the
S.P. (B), Nalbari, he had undertaken an inquiry against the
appellant and asked him to show the documents regarding
his Indian nationality - However, appellant failed to do so -
Reference was made to the Tribunal - By ex-parte order
dated 19.03.2012, the Tribunal held that the appellant had failed
to discharge his burden under Section 9 of the Act and failed
to prove that he is not a foreigner - Aggrieved, appellant filed
writ petition, which was dismissed - Correctness:
Held: Undisputedly, the appellant is not a foreigner recognised
as a national by the law of more than one foreign country -
Thus, the appellant's case would not fall under Section 8 of the
Act - Section 9 of the Act stipulates if in a case not falling under
Section 8 of the Act, any question arises as to whether a person is
or is not a foreigner or is or is not a foreigner of a particular class,
* Author
2330
[2024] 7 S.C.R.
Digital Supreme Court Reports
the person concerned must prove that he/she is not a foreigner or
not a foreigner of that particular class - In the instant case, it was
specifically alleged that the appellant had come to Assam from
Village-Dorijahangirpur, Police Station-Torail, District-Mymansingh
in Bangladesh while making a reference to the Tribunal - Hence,
it was incumbent on the authority making the reference to provide
details as to how it had received such information as also its
bona fide belief of such factum being true - In other words, the
authority had been, as claimed, able to trace the appellant's place
of origin - Surely then, the authority had some material to back its
assertion - The record does not show such material was given either
to the appellant or the Tribunal by the authority - In the absence
of the basic/primary material, it cannot be left to the untrammelled
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) - Under
the garb of and by taking recourse to Section 9 of the Act, the
authority, or for that matter, the Tribunal, cannot give a go-by to
the settled principles of natural justice - Audi alteram partem does
not merely envisage a fair and reasonable opportunity of being
heard - In opinion of this Court, it would encompass within itself
the obligation to share material collected with the person/accused
concerned - The evidence produced before the Tribunal by the
appellant to indicate that his parents had been resident in India
much prior to 01.01.1966 whereas his siblings and he himself
much prior to 25.03.1971, has been disbelieved only on the
ground of mismatch of actual English spelling of the names and
discrepancy in dates - As far as the discrepancy(ies) in dates and
spellings are concerned, this Court is of the view that the same
are minor in nature - The appellant had produced a document
showing that his father and mother had been resident of Village
Dolur Pather since 1965; that his sibling had also been declared
not to be a foreigner by the Tribunal, and; his elder brother and
he were both voters as per the 1985 Electoral Roll relating to 41
Bhabanipur Legislative Assembly Constituency - For and on
the strength of the totality of reasons, the Tribunal's order
dated 19.03.2012 as also the Impugned Judgment dated 23.11.2015
passed by the High Court are set aside - Putting an authoritative
quietus to the issue, the appellant is declared an Indian citizen
and not a foreigner. [Paras 36, 37, 41, 43, 54, 55]
Evidence - Imposing reverse burden - discussed.
[2024] 7 S.C.R.
2331
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
Case Law Cited
Mukesh Singh v. State (Narcotic Branch of Delhi) [2020] 9
SCR 245 : (2020) 10 SCC 120; Union of India v. Ghaus Mohammad
(1961) SCC OnLine SC 2 - followed.
Mangilal v. State of Madhya Pradesh [2004] 1 SCR 1 : (2004) 2
SCC 447; Noor Aga v. State of Punjab [2008] 10 SCR 379 : (2008)
16 SCC 417; Sarbananda Sonowal v. Union of India [2006] Supp.
10 SCR 167 : (2007) 1 SCC 174 - relied on.
Abdul Kuddus v. Union of India [2019] 8 SCR 669 : (2019) 6
SCC 604; Sarbananda Sonowal v. Union of India [2005] Supp.
1 SCR 472 : (2005) 5 SCC 665; Tolaram Relumal v. State of
Bombay [1955] 1 SCR 158; Krishi Utpadan Mandi Samiti v. Pilibhit
Pantnagar Beej Ltd. [2003] Supp. 6 SCR 344 : (2004) 1 SCC
391; Govind Impex Pvt. Ltd. v. Appropriate Authority, Income Tax
Dept. [2010] 14 SCR 523 : (2011) 1 SCC 529; Commissioner of
Customs (Import), Mumbai v. Dilip Kumar & Company [2018] 7
SCR 1191 : (2018) 9 SCC 1; London and North Eastern Railway
Co. v. Berriman 1946 AC 278, 295; Sri Krishna Coconut case,
AIR 1967 SC 973; Karnataka State Financial Corporation v.
N Narasimhaiah [2008] 4 SCR 853 : (2008) 5 SCC 176; Fateh
Mohd. v. Delhi Administration [1963] Supp. 2 SCR 560; Masud
Khan v State of Uttar Pradesh [1974] 1 SCR 793 : (1974) 3 SCC
469 - referred to.
London and North Eastern Rly. Co. v. Berriman, 1946 AC 278 :
(1946) 1 All ER 255 (HL); Tuck & Sons v. Priester (1887) 19
QBD 629 : 56 LJ QB 553 (CA) - referred to.
List of Acts
Citizenship Act, 1955; Foreigners Act, 1946; Foreigner (Tribunal)
Order, 1964; Illegal Migrants (Determination by Tribunals) Act, 1982;
Evidence Act, 1872; Constitution of India.
List of Keywords
Illegal migration; Citizenship; Indian nationality; Section 9 of
Foreigners Act, 1946; Minor variations in spelling of names
in government record; Reverse burden; Arbitrary discretion of
authority; Principles of Natural Justice; Audi alteram partem.
2332
[2024] 7 S.C.R.
Digital Supreme Court Reports
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7332 of 2024
From the Judgment and Order dated 23.11.2015 of the Gauhati High
Court in WPC No. 2668 of 2012
Appearances for Parties
Kaushik Choudhury, Saksham Garg, Parth Davar, Shaantanu Jain,
Advs. for the Appellant.
Shuvodeep Roy, Sai Shashank, Deepayan Dutta, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Ahsanuddin Amanullah, J.
I.A. No.58315 of 2017 [Condonation of Delay] is allowed, keeping
in mind the peculiar facts and circumstances herein. I.A. No.58325
of 2017 [Exemption from filing Certified Copy of the Impugned
Judgment], being formal in nature, is also allowed.
2.
Leave granted.
3.
The present appeal arises out of the Final Judgment and Order
passed by a Division Bench of the Gauhati High Court at Guwahati
(hereinafter referred to as the "High Court") in Writ Petition (Civil)
No.2668 of 2012 dated 23.11.2015 (hereinafter referred to as the
"Impugned Judgment") by which the Writ Petition filed by the appellant
was dismissed and the order passed by the Foreigners Tribunal,
Nalbari (hereinafter referred to as the "Tribunal") dated 19.03.2012
passed in F.T. (Nal) Case No.(N)/1096/06 declaring the appellant to
be a foreigner on the grounds that he failed to discharge his burden
under Section 9 of the Foreigners Act, 1946 (hereinafter referred
to as the "Act") and failed to prove that he is not a foreigner, was
affirmed.
THE FACTUAL PRISM:
4.
The appellant claims that his parents' names appeared in the Voter
List of the year 1965 at Sl. Nos.71 & 72 showing the address as
House No.17 in Village Dolur Pather, P.S. - Patacharkuchi, in the
[2024] 7 S.C.R.
2333
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
then district of Kamrup under 48 Bhabanipur Legislative Assembly
Constituency in the State of Assam. It is further his claim that his
parents' names also appeared in the Voter List of the year 1970
at Sl. Nos.79 & 80 showing the same address. The appellant was
born in the Village Dolur under Patacharkuchi Police Station in the
District of Barpeta and his name was enrolled alongwith his family
members in the voter list of 1985 which appeared in the additional
amended voter list of 1985 at Sl. No.552 showing the same address.
However, upon getting married in the year 1997, he left the joint family
and shifted to his present place of residence i.e., village Kashimpur,
P.O.-Kendu Kuchi, P.S. - Nalbari, in the district of Nalbari in the
State of Assam. As a result of this, the appellant's name was in the
Voter List of the year 1997 at Sl. No.105 showing the address as
House No.38 in Village Kashimpur, P.S. - Nalbari in the district of
Nalbari under 61 No. Dharmapur LAC. In the year 2006, doubting
his nationality, a case was registered in the Tribunal, Nalbari, being
F.T. (Nal) Case No.(N)/1096/06, Police Reference No.948/04 and
notice was served upon him.
5.
The appellant's daughter was issued a certificate by the Gaonbura
of Kashimpur Village stating the residential status of the appellant/
his daughter on 07.09.2010.
6.
The appellant, on receipt of notice from the Tribunal, appeared on
18.07.2011, praying for time to file Written Statement but the same
could not be done as the appellant claimed to be suffering from
serious health issues.
7.
On 12.09.2011, the Gaonbura of Village Dolur Pathar issued certificate
to the appellant regarding his residential status. By ex-parte order
dated 19.03.2012, the Tribunal held that the appellant had failed
to discharge his burden under Section 9 of the Act and failed to
prove that he is not a foreigner. The appellant also obtained a
medical certificate issued by the consultant doctor of Civil Hospital,
Nalbari dated 24.04.2012 stating that he was suffering from Chronic
Bronchitis Respiration disturbance from 25.11.2011 to 24.04.2012.
Upon becoming aware of the order dated 19.03.2012 of the Tribunal
from his counsel, the appellant filed Writ Petition (Civil) No.2668
of 2012 on 30.05.2012 before the High Court.
8.
In the said writ petition, the High Court by its interim order
dated 06.06.2012 stayed the operation of the Tribunal's order
2334
[2024] 7 S.C.R.
Digital Supreme Court Reports
dated 19.03.2012 directing the authority not to deport the appellant
during the pendency of the proceedings before itself. However,
ultimately vide the order dated 23.11.2015, the High Court dismissed
the Writ Petition, which is assailed herein.
SUBMISSIONS BY THE APPELLANT:
9.
Learned counsel for the appellant submitted that he has been
subjected to unfair treatment by the Tribunal as though he had
entered appearance upon notice, one opportunity was required to be
given to him since he was faced with serious penal consequences
like detention and/or deportation from the country, which was not
done. Further, it was submitted that even the High Court in the
Impugned Judgment has gone on technicalities by accepting minor
discrepancies in the documents which were not of the nature to lead
to a presumption in law that the same were not correct and were
merely differences in the spellings and date of birth. Even the medical
certificate, which is disputed, has been issued by the consultant of
the hospital, who was never examined. It was urged that as is known
to everybody, on the prescription given to a patient, a doctor writes
his opinion, record of which may not be maintained meticulously or
even casually in a hospital which is at the level of the District, as
may be done in big hospitals in cities.
10. It was submitted that the High Court has erroneously presumed that
the ground for not appearing before the Tribunal was not genuine.
Learned counsel contended that even if for the sake of argument
it is presumed that the reason for his absence was not genuine, it
cannot take away the basic fundamental right of the appellant to be
heard, that too in such an important case, where the appellant stood
not only to lose his nationality but also separation from his family
and possible deportation to a foreign State which would obviously
not accept him because he was born in India and thus, there was
no occasion for any foreign country to accept him as its citizen.
11. It was submitted that earlier also, this Court in the present
proceedings by order dated 28.07.2017 had directed the Tribunal
to decide the nationality of the appellant on merit by holding an
enquiry and submit a report after hearing the appellant and the
same has been done resulting in the Tribunal passing an opinion
and order on 16.11.2017 which has again declared the appellant
to be a foreigner.
[2024] 7 S.C.R.
2335
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
12. It was submitted that such declaration is totally perverse in the face
of overwhelming evidence to show that the appellant besides being
born in India and being a resident in India for his entire life and his
blood relatives i.e., siblings and parents having been Indian citizens
much prior to the cut-off date, the appellant has still been singled out
to be declared a foreigner which does not stand to reason. Another
point which learned counsel canvassed was that there was no
occasion for the appellant's name to figure in the National Register
of Citizens (hereinafter referred to as the "NRC") as he was declared
a foreigner way back in the year 2012 and as per the judgment of
this Court in Abdul Kuddus v Union of India (2019) 6 SCC 604,
a person whose name is not included in the NRC and is declared
a foreigner by the Tribunal can only move before the High Court in
writ proceedings, the relevant being Paragraph 27.1
SUBMISSIONS BY THE STATE [RESPONDENTS NO.1 AND 3]:
13. Per contra, learned counsel for the State of Assam submitted that
because of the grave threat to the economy, demography and
culture on account of unabated and large-scale illegal migration from
Bangladesh, this Court in Sarbananda Sonowal v Union of India
(2005) 5 SCC 665 [hereinafter referred to as Sarbananda Sonowal I ]
had held that '...there can be no manner of doubt that the State of
Assam is facing "external aggression and internal disturbance" on
account of large-scale illegal migration of Bangladeshi nationals.
It, therefore, becomes the duty of India to take all measures for
protection of the State of Assam from such external aggression and
internal disturbance as in Article 355 of the Constitution...'.
14. It was submitted that the present was a case of illegal migration
of a Bangladeshi national to India (Assam) after the cut-off date of
25.03.1971 and has to be dealt with utmost caution, considering
the adverse consequence of illegal migration on the whole country
in general and the respondent-State in particular. It was further
submitted that the present proceedings against the appellant have
been initiated under the Act, which under Section 9 provides that
1
'27. As stated above, a person aggrieved by the opinion/order of the Tribunal can challenge the findings/
opinion expressed by way of a writ petition wherein the High Court would be entitled to examine the issue
with reference to the evidence and material in the exercise of its power of judicial review premised on the
principle of "error in the decision-making process", etc. This serves as a necessary check to correct and
rectify an "error" in the orders passed by the Tribunal.'
2336
[2024] 7 S.C.R.
Digital Supreme Court Reports
the onus is on the person proceeded against/alleged foreigner to
prove that he is not a foreigner.
15. Learned counsel contended that the justification for placing the
burden upon the alleged foreigner has been dealt with by this Court
in Sarbananda Sonowal I (supra) at Paragraph 26.2
16. Learned counsel submitted that the proceeding against the appellant
was initiated on the basis of inquiry conducted in the year 2004
and due to the appellant failing to produce any document before
the Inquiry Officer, the case was referred to the Tribunal and after
service of notice, the appellant had appeared on 18.07.2011 and
prayed for time to file written statement which was allowed and the
matter was fixed for 11.08.2011, on which date his counsel filed a
petition for further time and the matter was fixed for 09.09.2011, but
thereafter the appellant remained absent on all subsequent dates.
Thus, learned counsel contended that the appellant failed to discharge
the burden cast upon him under Section 9 of the Act and the Tribunal
had no option but to proceed and pass an ex-parte order/opinion
on 19.03.2012 holding him to be a foreigner.
17. Learned counsel submitted that in the Writ Petition before the High
Court, the appellant placed reliance on the medical certificate of
Swahid Mukunda Kakati Civil Hospital, Nalbari dated 24.04.2012
to the effect that he was under treatment from '25.11.2011 till now'.
The High Court, after verification, found the authenticity of the said
certificate to be fake and held that the appellant had taken recourse
to falsehood with production of fake medical certificate and on
that count alone, the writ petition was dismissed which cannot be
said to be unreasonable warranting interference. It was submitted
that in compliance of the order of this Court in the present matter
on 28.07.2017 directing the Tribunal to examine the documents
2
'26. There is good and sound reason for placing the burden of proof upon the person concerned who
asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may
be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their
place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like
under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal
knowledge of the person concerned and not of the authorities of the State. After he has given evidence
on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if
necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a
foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid
points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says
that when any fact is especially within the knowledge of any person, the burden of proving that fact is
upon him.'
[2024] 7 S.C.R.
2337
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
filed by the appellant and to undertake an inquiry and submit report,
the Tribunal undertook such exercise and submitted its opinion
finally holding that the appellant had entered India illegally on or
after 25.03.1971 i.e., the cut-off date and thus, was an illegal migrant
post the cut-off date.
18. It was submitted that this Court may also consider the fact that the
proceedings against the appellant had already taken two decades to
reach this stage and any further delay would defeat the very object
and purpose of the Act which is speedy detection and deportation
of illegal migrants/foreigners staying in India. He also reiterated the
fact that because the appellant was declared to be a foreigner prior
to the preparation of the Draft and Supplementary NRC List, his
name was not included in the same. Learned counsel submitted that
this Court in Abdul Kuddus (supra) had settled the position that the
proceedings before the Tribunal being quasi-judicial in nature, the
findings thereof would operate as res judicata over the administrative
process of inclusion in NRC List and any person aggrieved by the
findings/opinion of the Tribunal would have to invoke the power of
judicial review under writ jurisdiction. Thus, he contended that if
any further liberty is given to the appellant to again challenge the
fresh report dated 16.11.2017 of the Tribunal in writ proceedings, a
time-limit be fixed so that closure could be given to the proceedings.
ANALYSIS, REASONING AND CONCLUSION:
19. Having considered the matter, the Court finds that grave miscarriage
of justice has occasioned in the instant case. We may note that
Section 8 of the Act reads as follows:
"8. Determination of nationality.-(1) When a foreigner
is recognised as a national by the law of more than one
foreign country or where for any reason it is uncertain
what nationality if any is to be ascribed to a foreigner, that
foreigner may be treated as the national of the country
with which he appears to the prescribed authority to be
most closely connected for the time being in interest or
sympathy or if he is of uncertain nationality, of the country
with which he was last so connected:
Provided that where a foreigner acquired a nationality by
birth, he shall, except where the Central Government so
2338
[2024] 7 S.C.R.
Digital Supreme Court Reports
directs either generally or in a particular case, be deemed
to retain that nationality unless he proves to the satisfaction
of the said authority that he has subsequently acquired by
naturalization or otherwise some other nationality and still
recognized as entitled to protection by the Government of
the country whose nationality he has so acquired.
(2) A decision as to nationality given under sub-section
(1) shall be final and shall not be called in question in
any Court:
Provided that the Central Government, either of its own
motion or on an application by the foreigner concerned,
may revise any such decision."
20. Undisputedly, the appellant is not a foreigner3 recognised as a national
by the law of more than one foreign country. Thus, the appellant's
case would not fall under Section 8 of the Act. That being the position
as regards Section 8 of the Act, we venture forward.
21. There is judicial clarity as regards the scope and nature of proceedings
before the Tribunal under the Act, as delineated by the judgments
in Abdul Kuddus (supra) and Sarbananda Sonowal I (supra). For
the purposes of proper appreciation, it is worthwhile to reproduce
Section 9 of the Act which reads as under:
"9. Burden of proof - If in any case not falling under
section 8 any question arises with reference to this Act
or any order made or direction given thereunder, whether
any person is or is not a foreigner of a particular class or
description the onus of proving that such person is not a
foreigner or is not a foreigner of such particular class or
description, as the case may be, shall, notwithstanding
anything contained in the Indian Evidence Act, 1872 (1
of 1872), lie upon such person."
22. In Abdul Kuddus (supra), it has been explained that after the
preparation and publication of NRC for the State of Assam, as set out
in Paragraphs 2 to 8 of the Schedule to the Citizenship (Registration
of Citizens and Issue of National Identity Cards) Rules, 2003 made
3
A 'foreigner' under Section 2(a) of the Act means "a person who is not a citizen of India".
[2024] 7 S.C.R.
2339
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
under Section 18 of the Citizenship Act, 1955 (hereinafter referred to
as the "Citizenship Act"), the right to appeal before the Tribunal under
Paragraph 8 would not be available to persons whose nationality
and citizenship status, either as an Indian or as a foreign national,
has already been adjudicated and declared under the Foreigners
(Tribunal) Order, 1964 (hereinafter referred to as the "1964 Order")
issued under Section 3 of the Act. In the present case, it is not in
dispute that the matter was decided by the Tribunal and at the first
round, the verdict was against the appellant based on an ex-parte
proceeding. Later, in view of the interim order of this Court, after
giving an opportunity to the appellant, the matter was again gone into
by the Tribunal and a report submitted to this Court which reiterated
its earlier decision that the appellant is a foreigner.
23. Thus, the Court, for completeness of adjudication, has to trace its
steps back to the proceeding right to the stage of inception i.e., the
very initiation of proceedings before the Tribunal under the Act.
24. A reference to Section 6A of the Citizenship Act is warranted:
"6A. Special provisions as to citizenship of persons covered
by the Assam Accord.―(1) For the purposes of this section
(a) "Assam" means the territories included in the State
of Assam immediately before the commencement of the
Citizenship (Amendment) Act, 1985 (65 of 1985);
b) "detected to be a foreigner" means detected to be
a foreigner in accordance with the provisions of the
Foreigners Act, 1946 (31 of 1946) and the Foreigners
(Tribunals) Order, 1964 by a Tribunal constituted under
the said Order;
c) "specified territory" means the territories included in
Bangladesh immediately before the commencement of the
Citizenship (Amendment) Act, 1985 (65 of 1985);
(d) a person shall be deemed to be Indian origin, if he, or
either of his parents or any of his grandparents was born
in undivided India;
(e) a person shall be deemed to have been detected to
be a foreigner on the date on which a Tribunal constituted
under the Foreigners (Tribunals) Order, 1964 submits its
2340
[2024] 7 S.C.R.
Digital Supreme Court Reports
opinion to the effect that he is a foreigner to the officer or
authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7),
all persons of Indian origin who came before the lst day
of January, 1966 to Assam from the specified territory
(including such of those whose names were included in
the electoral rolls used for the purposes of the General
Election to the House of the People held in 1967) and who
have been ordinarily resident in Assam since the dates of
their entry into Assam shall be deemed to be citizens of
India as from the lst day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7),
every person of Indian origin who―
(a) came to Assam on or after the lst day of January, 1966
but before the 25th day of March, 1971 from the specified
territory; and
(b) has, since the date of his entry into Assam, been
ordinarily resident in Assam; and
(c) has been detected to be a foreigner;
shall register himself in accordance with the rules made
by the Central Government in this behalf under section 18
with such authority (hereafter in this sub-section referred
to as the registering authority) as may be specified in
such rules and if his name is included in any electoral roll
for any Assembly or Parliamentary constituency in force
on the date of such detection, his name shall be deleted
therefrom.
Explanation.―In the case of every person seeking
registration under this sub-section, the opinion of the
Tribunal constituted under the Foreigners (Tribunals)
Order, 1964 holding such person to be a foreigner, shall
be deemed to be sufficient proof of the requirement
under clause (c) of this subsection and if any question
arises as to whether such person complies with any
other requirement under this sub-section, the registering
authority shall,―
[2024] 7 S.C.R.
2341
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
(i) if such opinion contains a finding with respect to such
other requirement, decide the question in conformity with
such finding;
(ii) if such opinion does not contain a finding with respect
to such other requirement, refer the question to a Tribunal
constituted under the said Order having jurisdiction in
accordance with such rules as the Central Government
may make in this behalf under section 18 and decide the
question in conformity with the opinion received on such
reference.
(4) A person registered under sub-section (3) shall have,
as from the date on which he has been detected to be a
foreigner and till the expiry of a period of ten years from
that date, the same rights and obligations as a citizen of
India (including the right to obtain a passport under the
Passports Act, 1967 (15 of 1967) and the obligations
connected therewith), but shall not entitled to have his
name included in any electoral roll for any Assembly or
Parliamentary constituency at any time before the expiry
of the said period of ten years.
(5) A person registered under sub-section (3) shall be
deemed to be a citizen of India for all purposes as from
the date of expiry of a period of ten years from the date
on which he has been detected to be a foreigner.
(6) Without prejudice to the provisions of section 8―
(a) if any person referred to in sub-section (2) submits in
the prescribed manner and form and to the prescribed
authority within sixty days from the date of commencement
of the Citizenship (Amendment) Act, 1985 (65 of 1985), a
declaration that he does not wish to be a citizen of India,
such person shall not be deemed to have become a citizen
of India under that sub-section;
(b) if any person referred to in sub-section (3) submits in
the prescribed manner and form and to the prescribed
authority within sixty days from the date of commencement
of the Citizenship (Amendment) Act, 1985(65 of 1985),
2342
[2024] 7 S.C.R.
Digital Supreme Court Reports
or from the date on which he has been detected to be a
foreigner, whichever is later, a declaration that he does not
wish to be governed by the provisions of that sub-section
and sub-sections (4) and (5), it shall not be necessary
for such person to register himself under sub-section (3).
Explanation.― Where a person required to file a declaration
under this sub-section does not have the capacity to enter
into a contract, such declaration may be filed on his behalf
by any person competent under the law for the time being
in force to act on his behalf.
(7) Nothing in sub-sections (2) to (6) shall apply in relation
to any person―
(a) who, immediately before the commencement of the
Citizenship (Amendment) Act, 1985 (65 of 1985), is a
citizen of India;
(b) who was expelled from India before the commencement
of the Citizenship (Amendment) Act, 1985, under the
Foreigners Act, 1946 (31 of 1946).
(8) Save as otherwise expressly provided in this section, the
provisions of this section shall have effect notwithstanding
anything contained in any other law for the time being in
force."
25. From the aforesaid, it is clear that a cut-off date of 25.03.1971 was
fixed with regard to deciding the status of persons who had come
to Assam on or after 01.01.1966 but before 25.03.1971 from the
"specified territory"4 and from the date of entry have been ordinarily
resident in Assam and been detected to be foreigners. Such persons
were required to register themselves with the Registering Authority
in accordance with rules made by the Central Government under
Section 18 of the Citizenship Act.
26. In the Explanation to Sub-section (3) of Section 6A of the Citizenship
Act, it has been provided that the opinion of the Tribunal constituted
4
Section 6A(1)(c) of the Citizenship Act states: '"specified territory" means the territories included in
Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985 (65 of
1985)'
[2024] 7 S.C.R.
2343
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
under the 1964 Order holding the person to be a foreigner shall
be deemed sufficient proof of the requirement under clause (c) of
the sub-section aforesaid [viz. Section 6A(3)(c), Citizenship Act]
and the same would also suffice for any other requirement of the
Sub-section. If a question arises as to whether the person complies
with any other requirement under this Sub-section, and the opinion
of the Tribunal contains a finding qua such other requirement, the
Registering Authority will decide the question in accordance with the
opinion of the Tribunal. However, the Registering Authority is required
to refer the matter to the Tribunal, if the opinion of the Tribunal is
silent as to the other requirements, and thereupon the question is
to be decided by the Registering Authority in conformity with the
opinion received from the Tribunal.
27. The very initiation of the proceeding was under the 1964 Order. It is
worthwhile to point out that the 1964 Order has been subjected to
multiple amendments. Para 3 of the 1964 Order has also undergone
variation - a different version was in existence when the Tribunal
examined the matter. However, as we are expounding the law, it is
deemed appropriate to refer to the position as it prevails on date.
Para 3 of the 1964 Order, last amended by GSR dated 30.08.2019,
reads as under:
"3. Procedure for disposal of questions.-(1) The Tribunal
shall serve on the person to whom the question relates,
a copy of the main grounds5 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 and after considering such evidence
as may be produced and after hearing such persons
as may desire to be heard, the Tribunal shall submit its
opinion to the officer or authority specified in this behalf
in the order of reference.
(2) The Foreigners Tribunal shall serve a show-cause
notice on the person to whom the question relates, that
is, the proceedee.
5
This was brought in by GSR dated 30.09.1965 and has remained since then. In other words, when notice
was served on the appellant, this portion of the 1964 Order was in existence.
2344
[2024] 7 S.C.R.
Digital Supreme Court Reports
(3) The notice referred to in sub-para (2) shall be served
within ten days of the receipt of the reference of such
question by the Central Government or any competent
authority.
(4) The notice shall be served in English and also in the
official language of the State indicating that the burden is
on the proceedee to prove that he or she is not a foreigner.
(5)(a) The notice shall be served at the address where the
proceedee last resided or reportedly resides or works for
gain, and in case of change of place of residence, which
has been duly intimated in writing to the investigating
agency by the alleged person, it shall be served at such
changed address by the Foreigners Tribunal.
(b) if the proceedee is not found at the address at the
time of service of notice, the notice may be served on any
adult member of the family of the proceedee and it shall
be deemed to be served on the proceedee;
(c) where the notice is served on the adult member of the
family of the proceedee, the process server shall obtain
the signature or thumb impression of the adult member
on the duplicate of the notice as a token of proof of the
service;
(d) if the adult member of the family of the proceedee
refuses to put a signature or the thumb impression, as the
case may be, the process server shall report the same to
the Foreigners Tribunals;
(e) if the proceedee or an available adult member of his
or her family refuses to accept the notice, the process
server shall give a report to the Foreigners Tribunal in that
regard along with the name and address of a person of
the locality, who was present at the time of making such
an effort to get the notices served, provided such person
is available and willing to be a witness to such service
and the process server shall obtain the signature or thumb
impression of such witness, if he or she is present and
willing to sign or put his or her thumb impression, as the
case may be;
[2024] 7 S.C.R.
2345
Md. Rahim Ali @ Abdur Rahim v. The State of Assam & Ors.
(f) if the proceedee has changed the place of residence
or place of work, without intimation to the investigating
agency, the process server shall affix a copy of the notice
on the outer door or some other conspicuous part of the
house in which the proceedee ordinarily resides or last
resided or reportedly resided or personally worked for gain
or carries on business, and shall return the original to the
Foreigners Tribunal from which it was issued with a report
endorsed thereon or annexed thereto stating that he has
so affixed the copy, the circumstances under which he did
do, and the name and address of the person (if any) by
whom the house was identified and in whose presence
the copy was affixed;
(g) where the proceedee or any adult member of his or
her family or her is not found at the residence, a copy of
the notice shall be pasted in a conspicuous place of his or
her residence, witnessed by one respectable person of the
locality, subject to his or her availability and willingness to
be a witness in that regard and the process server shall
obtain the signature or the thumb impression of that person
in the manner in which such service is affected;
(h) where the proceedee resides outside the jurisdiction
of the Foreigners Tribunal, the notice shall be sent for
service to the officer incharge of the police station within
whose jurisdiction the proceedee resides or last resided
or is last known to have resided or worked for gain and
the process server shall then cause the service of notice
in the manner as provided hereinabove;
(i) if no person is available or willing to be the witness of
service of notice or refuses to put his or her signature or
thumb impression the process server shall file a signed
certificate or verification to that effect, which shall be
sufficient proof of such non-availability, unwillingness and
refusal;
(j) on receipt of the signed certificate or verification referred
to in clause (i) the Foreigners Tribunals shall return such
references with such directions as it thinks fit to the
2346
[2024] 7 S.C.R.
Digital Supreme Court Reports
competent authority for tracing out the proceedee and
produce before the said Tribunal.
(6) Where the proceedee appears or is brought before the
Foreigners Tribunal and he produces the documents in
support of his claim, the Foreigners Tribunal may release
such person on bail and decide the matter accordingly.
(7) In case where notice is duly served, the proceedee
shall appear before the Foreigners Tribunal in person or
by a counsel engaged by him or her, as the case may be,
on every hearing before the Foreigners Tribunal.
(8) The Foreigners Tribunal shall give the proceedee ten
days time to give reply to the show-cause notice and
further ten days time to produce evidence in support of
his or her case.
(9) The Foreigners Tribunal may refuse a prayer for
examination of witnesses on Commission for production
of documents if, in the opinion of the Foreigners Tribunal,
such prayer is made to delay the proceedings.
(10) The Foreigners Tribunal shall take such evidence
as may be produced by the concerned Superintendent
of Police.
(11) The Foreigners Tribunal shall hear such persons as,
in its opinion, are required to be heard.
(12) The Foreigners Tribunal may grant adjournment of
the case on any plea sparingly and for reasons to be
recorded in writing.
(13) Where the proceedee fails to produce any proof in
support of his or her claim that he or she is not a foreigner
and also not able to arrange for bail in respect of his or
her claim, the proceedee shall be detained and kept in
internment or detention centre;
(14) The Foreigners Tribunal shall dispose of the case
within a period of sixty days of the receipt of the reference
from the competent authority.
(15) After the case has been heard, the Foreigners Tribunal
shall submit its opinion as soon thereafter as may be
[2024] 7 S.C.R.
2347
Md. Rahim Ali @ Abdur Rahim v.