More than 12 years after a tribunal in Assam declared a Muslim man to be a foreigner, the Supreme Court Yesterday (July 11th) restored his citizenship while ruling that a “grave miscarriage of justice” had taken place in the case.
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NEW DELHI: More than 12 years after a tribunal in Assam declared a Muslim man to be a foreigner, the Supreme Court on Thursday restored his citizenship, ruling that-
“a grave miscarriage of justice had occurred.”
A Bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah emphasized that the records and pleadings did not clarify the basis on which the Police initiated proceedings against Md Rahim Ali in 2004.
The Court pointed out,
“In the present case, though it is mentioned that from inquiry it was revealed that the appellant had migrated illegally to the State of Assam from Bangladesh after 25.03.1971, nothing has come on record to indicate even an iota of evidence against him, except for the bald allegation that he had illegally migrated to India post 25.03.1971. It is also not known as to who, if any person, had alleged that the appellant had migrated to India after 25.03.1971 from Village – Dorijahangirpur, Police Station – Torail, District – Mymansingh in Bangladesh.”
The Court further underscored the police’s responsibility to provide details about how it received the information that Ali had come to Assam from Bangladesh.
“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,”
-it added.
Previously, Ali had challenged the Foreigners Tribunal’s decision before the Gauhati High Court, which initially stayed the tribunal’s order. However, his plea was dismissed in November 2015, leading to the appeal before the Supreme Court.
The Court questioned whether Section 9 (termination of citizenship) of the Citizenship Act empowers 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’.”
It concluded that the State cannot proceed in such a manner, as material for such suspicion was absent in this case.
“It needs no reiteration that a person charged or accused would generally not be able to prove to the negative if he/she is not aware of the evidence/material against him/her which leads to the person being labelled suspect. Ipso facto just an allegation/accusation cannot lead to shifting of the burden to the accused, unless he/she is confronted with the allegation as also the material backing such allegation,”
-the Court added.
The Court clarified that at such a stage, the evidentiary value of the material is not required to be scrutinized.
However, it stressed that mere allegations, especially vague ones that mechanically reproduce legal provisions, cannot be permitted. The person suspected must be made aware of the information and material against them.
“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),”
-the Court stated.
In this case, the authorities erroneously construed the words “a copy of the main grounds on which he is alleged to be a foreigner” in the rules to mean the allegations against the person.
“This error at the very inception stage is enough to render a fatal blow to the entire exercise undertaken. The term ‘main grounds’ is not synonymous or interchangeable with the term ‘allegation(s)’. There is no, and there cannot be any, ambiguity that ‘main grounds’ is totally distinct and different from the ‘allegation’ of being ‘a foreigner’,”
-it added.
However, the Court clarified that strict proof of such allegations is not necessary; only the material on which the allegation is founded must be shared with the accused.
“Audi alteram partem does not merely envisage a fair and reasonable opportunity of being heard. In our opinion, it would encompass within itself the obligation to share material collected with the person/accused concerned,”
-it said.
The Court noted that the tribunal disbelieved the evidence presented due to discrepancies in the spelling of names and dates. The Bench opined that a casual entry by enumerators should not lead to severe consequences for Ali.
The Court observed,
“It is not uncommon throughout India that different spellings may be written in the regional/vernacular language and in English. Such/same person will have a differently spelt name in English and the local language. This is more pronounced where due to specific pronunciation habits or styles there can be different spellings for the same name.”
Thus, the Court set aside the orders of the High Court and Foreigners Tribunal.
“We are not inclined to remand the matter to the Tribunal for another round of consideration. Putting an authoritative quietus to the issue, the appellant is declared an Indian citizen and not a foreigner. Necessary consequences in law shall follow,”
-it further said.
The Court also directed that a copy of the judgment be circulated to all Foreigners’ Tribunals in Assam.
CASE TITLE:
Md Rahim Ali @ Abdur Rahim vs State of Assam and Ors.
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