Fair, reasoned process must decide citizenship: Supreme Court

The Supreme Court on Monday (July 13, 2026) held that the determination of citizenship and foreigner status must be undertaken through a “fair, lawful and reasoned” process, as it set aside a batch of 27 Gauhati High Court judgments declaring the appellants to be foreigners and remanded the cases to the Foreigners Tribunals concerned for fresh adjudication.

A Bench of Justices Vikram Nath and Sandeep Mehta observed that while the state has a legitimate interest in ensuring that persons who are legally ineligible for an Indian citizenship do not obtain such a status through “false claims”, the “grave consequence” of being declared a foreigner must follow a procedure that adheres to constitutional guarantees.

“A state action which is arbitrary cannot claim the protection of law merely because it is clothed in statutory form. A proceeding which may result in a person being declared a foreigner cannot be sustained if the procedure adopted is mechanical, one-sided, or devoid of application of mind... The Tribunal must examine whether the proceedee had a fair opportunity, whether the main grounds were disclosed, whether the evidence before it was capable of supporting the reference, and whether the conclusion follows from the material on record,” the judgment, authored by Justice Nath, said.

The High Court had dismissed the appeals against the orders of the Foreigners Tribunals declaring the appellants to be foreigners after noting that none of them had appeared before the tribunals despite having been served notices. It had observed that, in the absence of any written statement, documents or evidence from the appellants, the tribunals had “no option” but to affirm the references.

‘Constitutional mandate’

The apex court, however, clarified that the remand should not be construed as an affirmation of the appellants’ claim to Indian citizenship. Rather, it said, the exercise was intended solely to ensure that the serious civil consequences of being declared a foreigner flow only from an adjudication that is legally sustainable and consistent with the principles of fairness.

“The remand being directed is not intended to confer any equity in favour of a person who is unable to establish his or her claim. It is only to ensure that the serious consequence of being declared a foreigner follows from an adjudication which satisfies the requirements of the Foreigners Act, 1946 (1946 Act), the Foreigners (Tribunals) Order, 1964, and the constitutional mandate of fairness,” the Bench observed.

Accordingly, the Bench set aside both the High Court judgments and the corresponding opinions of the Foreigners Tribunals concerned, directing the tribunals to decide the matters afresh without being influenced by their earlier findings or those of the High Court. It said the fresh adjudication must involve an independent assessment of the evidence and the rival claims in accordance with law and should, as far as possible, be completed within six months.

The court further directed that no coercive steps be taken against the appellants until the Foreigners Tribunals render fresh opinions. It also directed the appellants to appear before the tribunals within four weeks, cooperate with the proceedings and refrain from seeking unnecessary adjournments.

‘High legal consequence’

Justice Nath also acknowledged that questions of citizenship and foreigner status occupy a field of “high constitutional and legal significance”, particularly because a declaration that a person is a foreigner carries far more than ordinary civil consequences. Such a finding, the judge noted, may result in detention, deportation, separation from family and community, and even “statelessness”.

“Even in a case where the proceedee fails to appear despite service, the Tribunal continues to act as a quasi-judicial forum. It must satisfy itself that notice was duly served in accordance with law. It must examine whether the main grounds were made available to the proceedee. It must consider the evidence produced by the State. It must assess whether the material placed before it is capable of supporting the conclusion that the proceedee is a foreigner. It must record reasons, even if briefly,” the Bench said.

The apex court further underlined that while Section 9 of the 1946 Act undoubtedly places the burden upon the proceedee to prove that he or she is not a foreigner, it does not absolve a Tribunal of its “obligation” to conduct a lawful adjudication so as to not proceed with a “mechanical” declaration.

The Bench also pointed out that the guarantees of equality before the law under Article 14 and the right to life and personal liberty under Article 21 of the Constitution extend to foreigners as well, and are not confined to Indian citizens.

“A person proceeded against before a Foreigners Tribunal may ultimately fail to establish Indian citizenship, but the process by which such determination is made must still satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness”, the Bench said.

The principal contention before the apex court was whether a person could be declared a foreigner through ex parte proceedings solely on account of non-appearance, particularly where government records were available in support of the individual’s claim to Indian citizenship.

The dispute arose from an order dated May 9, 1997, by the Illegal Migrants (Determination) Tribunal, which declared Sabitri Dey and her husband, Sambhu Dey, to be illegal migrants after they failed to appear despite summons. The petitioners contended that they had no knowledge of the proceedings and that the tribunal’s conclusion rested primarily on the inquiry officer’s hearsay testimony rather than reliable substantive evidence.

According to the petitioners, they came to know of the tribunal’s order only in 2019, following which they approached the Gauhati High Court. They argued that the absence of legal representation or the appointment of an amicus curiae had deprived them of a fair hearing, in violation of the guarantee of a fair and just procedure under Article 21 of the Constitution.

The Gauhati High Court, however, dismissed their challenge in 2020, holding that the petitioners had shown “utter negligence” by approaching the court nearly 23 years after the tribunal’s order.