‘A prophet without honour’: Can Assam’s Foreigner’s Tribunals pass an ex-parte order declaring a person an illegal migrant?
Between 1985 and 2019, Foreigner Tribunals in Assam have declared over 63,000 persons as foreigners in ex-parte proceedings. In the absence of a steadfast procedure to re-scrutinise these decisions, Assam’s citizens continue to be treated with indignity, stripped of their citizenship in their own country
Published on: 12 March 2025, 03:52 pm
AS PER data revealed in the Parliament in 2019, between 1985 to February 28, 2019, the Foreigners Tribunals (‘FTs’) in Assam have declared 63,959 persons as foreigners in ex-parte proceedings. This means that till 2019, FTs declared 63,959 persons as illegal migrants in terms of Section 6A of the Citizenship Act, 1955, without hearing their case.
However, serious contentions can be raised against whether FTs in Assam can at all declare a person as a foreigner in an ex-parte proceeding in terms of the process as it presently follows.
Mere allegation that someone is an illegal migrant is not enough to impose the Section 9 burden in the Foreigners Act, 1946*.
How a case is initiated in the FT
The case is referred to the FTs through three routes:
If the Electoral Registration Officer (‘ERO’) expresses suspicion regarding the inclusion of a name in the electoral roll, it directs for an on-spot verification by the Local Verification Officer. Based on this report, the ERO marks the person as ‘doubtful’ in electoral rolls and refers the case to the Superintendent of Police (Border) which, in turn, refers the case to the respective FT in its jurisdiction.
Similarly, if the Superintendent of Police (Border) has doubt about the nationality of a person, it directs an Inquiry Officer to conduct verification and submit a report, based on which, it refers the case to the FT.
Cases at the FT are also transferred from the Illegal Migrants Determination Tribunal following the Supreme Court’s judgement in Sarbananda Sonowal v. Union of India (2005) in which it declared the Illegal Migrants (Determination by Tribunals) Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984 to be ultra vires the Constitution of India.
These references by the referral authority also cannot be mechanical. In State of Assam and v. Moslem Mondal (2013), the full bench of the Gauhati High Court noted that the referral authority “has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference.” .
More recently, the Supreme Court in a landmark judgement in Md. Rahim Ali v The State of Assam (2024) through which it restored the citizenship of a person declared foreigner in an ex-parte proceeding after two decades, has held that even for initiating an inquiry the authorities have to have in their knowledge or possession, some material basis or information to suspect that a person is a foreigner and not an Indian. Mere allegation that someone is an illegal migrant is not enough to impose the Section 9 burden in the Foreigners Act, 1946*.
Notice issued by the Tribunal
Once the case is received by the FT on reference, the judicial pronouncements further cast a responsibility on the tribunal to prima facie satisfy itself about the existence of the ‘grounds’ that the proceedee is a foreigner before issuing notice to the proceedee.
On the service of the notice with a copy of ‘main grounds’, if the proceedee does not record their appearance by filling a written statement, the FT declares the person as a foreigner in an ex-parte proceeding. There are rare cases in which tribunals record the deposition of the Inquiry Officer or try to legally examine the report submitted by the Superintendent of Police (Border).