Minor Discrepancies In Documents Not Sufficient To Doubt Citizenship Claim: SC Quashes Foreigners Tribunal Proceedings Against Assam Man

The Supreme Court quashed an order of Foreigner's Tribunal that had declared an Assam resident as foreigner.

Declaring him as an Indian citizen, the Apex Court held that the minor discrepancies in the material produced by him were not sufficient enough for there to be doubt and disbelief about his citizenship claim.

In that context, the Bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah observed that, "the discrepancy(ies) in the material produced by the appellant can be termed minor. The same were not sufficient to lead the Tribunal to doubt and disbelieve the appellant and the version put forth by him. Thus, 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."

The case involved Md. Rahim Ali, a resident of Nalbari district in Assam, who was accused of being an illegal immigrant from Bangladesh who entered India after March 25, 1971 – the cut-off date for detecting foreigners in Assam according to the Assam Accord. In 2012, a Foreigners Tribunal in Nalbari declared Ali a foreigner in an ex-parte order. The Gauhati High Court upheld this decision in 2015. Subsequently, Ali approached the Supreme Court to challenge his classification as a foreigner.

The Apex Court quashed both the Foreigners Tribunal’s 2012 order and the subsequent Gauhati High Court judgment. Regarding the burden of proof, the Court held that while Section 9 of the Foreigners Act places the onus on the accused to prove citizenship, the authorities must first have a material basis to suspect a person of being a foreigner before initiating proceedings. The Court observed that, "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 clarified that "main grounds" are distinct from mere allegations, and authorities must share the material on which foreigners proceedings are based with the accused. The Court also addressed minor discrepancies in documents, stating that variations in name spellings or dates are common, especially in rural areas, and cannot be the sole basis to doubt citizenship claims. Emphasizing principles of natural justice, the Court stated that, "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."

The Supreme Court declared Ali an Indian citizen instead of remanding the case back to the Tribunal, noting that the discrepancies in his documents were minor and insufficient to doubt his claim. The Court highlighted the severe consequences for a person declared as a foreigner, emphasizing the need for adequate care to ensure no genuine citizen of India is wrongfully expelled. The judgment noted that, "The consequences which would befall the person declared as a foreigner are no doubt penal and severe. The moment a person is declared to be a foreigner, he/she is liable to be detained and deported to the country of his/her origin."

The Court underscored the difficulties faced by uninformed or illiterate persons in rural areas, who may lack official documents, stating that, "Another relevant aspect is the prevalent situation on the ground where uninformed/illiterate persons or persons not being well-informed, in the absence of any requirement to obtain and hold an official document and without possessing property in their own names, would not have any official document issued by the government, State or Central."

The judgment also referenced the literacy rate in Assam, which was 72.19% according to the 2011 Census, with lower rates in the 1960s and 1970s. The Court observed that variations in name spelling are common in the preparation of Electoral Rolls and cannot lead to the conclusion that the person is not an Indian national. The Court noted that, "Variation in name spelling is not a foreign phenomenon in preparation of the Electoral Roll. Further, the Electoral Roll has no acceptance in the eyes of law insofar as proof of date of birth is concerned. A casual entry by the enumerators when noting and entering the name(s) and dates of birth(s) as also the address(es) of the person(s) while making preparatory surveys for the purposes of preparing the Electoral Rolls cannot visit the appellant with dire consequences."

The Court further pointed out that name spellings on government documents often vary based on language and pronunciation, a common occurrence throughout India. Thus, such discrepancies in documents are not sufficient to disbelieve them and declare someone a foreigner, holding that, "Not just in Assam but in many States, it is seen that names of people, even on important government documents can have and do have varied spellings depending on them being in English or Hindi or Bangla or Assamese or any other language, for that matter. Moreover, names of persons which are written either by the persons preparing the Voters List or by the personnel making entries into different Government records, the spelling of the name, based upon its pronunciation, may take on slight variations."

Setting aside the Foreigners Tribunal's ex-parte order that declared Md. Rahim Ali a foreigner due to discrepancies in spellings and dates, the Court opined that "...not being in the wrong, and being an ignorant person, he, truthfully and faithfully produced the official records as they were in his possession. We do not see any attempt by the appellant to get his official records prepared meticulously without any discrepancy. The conduct of an illegal migrant would not be so casual."

Cause Title: Md. Rahim Ali @ Abdur Rahim vs The State of Assam & Ors. (Neutral Citation: 2024 INSC 511) 

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