Authorities cannot accuse individuals of being foreigners and initiate an investigation into their citizenship without material to substantiate their suspicion, the Supreme Court said on Thursday.

A bench of Justices Vikram Nath and Ahsanuddin Amanullah noted that although section 9 of the Foreigners Act puts the burden of proof on the person accused of being a foreigner to prove their citizenship, it could not be invoked on the basis of “bald and vague allegations”.

The court made the observations when setting aside a 2015 order of the Gauhati High Court upholding a 2012 decision of the foreigners tribunal in Assam’s Nalbari that had declared a man named Md. Rahim Ali a foreigner, Live Law reported.

The bench noted the absence of material evidence in the case apart from “bald allegations” used to justify the investigation against Ali by the authorities in Nalbari. It also noted the “casual” manner in which the proceedings were initiated against Ali. “It is for the authorities concerned to have in their knowledge or possession, some material basis or information to suspect that a person is a foreigner and not an Indian,” the court said.

“The question is that does section 9 of the Foreigners Act empower the Executive to pick a person at random, knock at his/her/their door, tell him/her/they/them ‘We suspect you of being a foreigner’, and then rest easy basis section 9?” the court asked.

The bench said that even if section 9 is invoked, “the individual has to be intimated of the information and material available against him, such that he/she can contest and defend the proceedings against him”.

It said that a person who is declared a foreigner is liable to be detained and then deported to their country of origin.

However, this can only be done with material that establishes that the person is from another country and not an Indian citizen, the court said. It added that authorities had not been able to prove this in the present case.

“Another possibility is that if the foreign country refuses to accept the foreigner, he would be rendered stateless, and languish for the remainder of his life in confinement,” the court said.

This, the court added, would hurt the person’s rights under Article 14 and Article 21 of the Constitution. While Article 14 provides for equality before the law, Article 21 ensures protection of life and personal liberty.

The court also said that Ali had provided documents that indicated his presence in India before 1971. However, this was dismissed by the foreigners tribunal because of minor discrepancies in spelling and dates, it said, adding that such errors were common in electoral rolls and government records.

It then set aside the Gauhati High Court’s order.

The case

In 2012, the foreigners tribunal made the declaration on the grounds that Ali had failed to prove his Indian citizenship as per section 9 of the Act.

In 2004, Ali was first accused of being an undocumented migrant from Bangladesh who entered the country after 1971 – the cutoff year under section 6A of the Citizenship Act.

Section 6A was introduced as a special provision under the Act when the Assam Accord was signed between the Centre and leaders of the Assam Movement in 1985. It allows foreigners who came to Assam between January 1, 1966, and March 25, 1971, to seek Indian citizenship.

Ali had claimed that his parents’ names appeared in the voter lists of 1965 and 1970 in Assam’s Dolur Pather village, where he was born. His name was added to the voter list in 1985.

After 1997, his name appeared in the voter list in the Kashimpur village as he had relocated there after marriage, he had said, according to Live Law.

However, authorities alleged that Ali had failed to provide material evidence of his entry into India before January 1, 1966.

In 2011, Ali appeared before the foreigners tribunal and sought time to file a written statement. Subsequently, he was unable to submit it because of health reasons, Live Law reported. In 2012, the foreigners tribunal declared him a foreigner despite having received a medical certificate on his behalf.

In the same year, the High Court stayed the tribunal’s order. This prevented Ali from getting deported. In 2015, the High Court upheld the tribunal’s decision.

Also read: In Assam, the High Court wants ‘declared foreigners’ to have fewer rights