2026 INSC 694 C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 1 of 45

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 2820/2024

SABITRI DEY @ SWASTHI DEY

& ORS. …APPELLANT(S)

VERSUS

UNION OF INDIA & ORS. …RESPONDENT(S)

WITH

CIVIL APPEAL NO(S). /2026

@ SLP(C) No. 9745/2017

WITH

CIVIL APPEAL NO(S). /2026

@ SLP(C) Nos. 33488-33489/2017

WITH

CIVIL APPEAL NO(S). /2026

@ SLP(C) NO. @ Diary No(s). 27282/2017

WITH

C.A. No. 2840/2024

WITH

C.A. No. 3521/2024

WITH

C.A. No. 3520/2024

WITH

Crl. A. No. 1334/2024

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 2 of 45

WITH

C.A. No. 2821/2024

WITH

C.A. No. 3403-3404/2025

WITH

C.A. No. 5806/2025

WITH

C.A. No. 1579/2025

WITH

C.A. No. 1577-1578/2025

WITH

C.A. No. 1574-1575/2025

WITH

C.A. No. 6870/2025

WITH

C.A. No. 5805/2025

WITH

C.A. No. 5789/2025

WITH

Crl.A. No. 628/2025

WITH

CRIMINAL APPEAL NO(S). /2026

@SLP(Crl) No. 10767/2018

WITH

C.A. No. 1573/2025

WITH

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 3 of 45

C.A. No. 4305-4306/2025

WITH

CRIMINAL APPEAL NO(S). /2026

@ SLP(Crl.)No. @ Diary No(s). 37766/2017

WITH

C.A. No. 4858/2024

WITH

CIVIL APPEAL NO(S). /2026

@ SLP(C) No. 23494/2017

WITH

C.A. No. 3751/2025

WITH

C.A. No. 2836/2024

WITH

CIVIL APPEAL NO(S). /2026

@SLP(C)NO.24686/2016

AND WITH

CIVIL APPEAL NO(S). /2026

@ SLP(C) No. @ Diary No.15744 OF 2023

J U D G M E N T

VIKRAM NATH, J.

1. Delay condoned in those matters in which delay, if

any, is there. Leave granted in SLP(C) No. 9745 of

2017, SLP(C) Nos. 33488-33489 of 2017, Diary No.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 4 of 45

27282 of 2017, SLP(Crl.) No. 10767 of 2018, Diary No.

37766 of 2017, SLP(C) No. 23494 of 2017, Diary No.

15744 of 2023 and SLP(C) No. 24686 of 2016.

2. The present batch of appeals arises out of proceedings

before the Foreigners Tribunals in the State of Assam

and, in some matters, before the erstwhile Illegal

Migrants (Determination) Tribunals. In all these

matters, the appellants have been declared to b e

foreigners and the said opinions have been affirmed

by the High Court of Assam, Nagaland, Mizoram and

Arunachal Pradesh at Guwahati

1.

3. The common grievance of the appellants is that the

opinions against them were rendered in proceedings

which were either ex parte or had become effectively

ex parte, and that the statutory determination of their

status was made without a full and meaningful

opportunity to contest the reference. Since the

question involved is common, these matters have

been heard together and are being decided by this

common judgment.

4. We shall now briefly detail the factual and procedural

background of each of these appeals, to the extent

necessary for appreciating the common issue which

arises for consideration:

1

hereinafter referred to as “the High Court”

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 5 of 45

4.1. In C.A. No. 2820 of 2024, Sabitri Dey @ Swasthi

Dey and Others v. Union of India and Others, the

appellants assail the judgment dated 16.10.2020

passed by the High Court in WP(C) No. 8018 of

2019, whereby the ex parte opinion dated

09.05.1997 passed by the Illegal Migrants (D)

Tribunal, Diphu, Karbi Anglong, in I.M.(D).T.

Case No. 51 of 1995 was affirmed. The High

Court noticed that the reference was made

against Sabitri Dey @ Swasthi Dey, her husband

late Shambhu Dey, and their two children, Mithu

Dey and Baby Dey. The High Court further

noticed that the notice had been received by late

Shambhu Dey, but none of the proceedees

appeared before the Tribunal, filed a written

statement, or engaged counsel, and dismissed

the writ petition also on the ground of delay and

laches.

4.2. In the Civil Appeal arising out of SLP(C) No. 9745

of 2017, Ajbahar Ali v. Union of India and

Others, the appellant challenges the order dated

06.09.2016 passed by the High Court in WP(C)

No. 4782 of 2016, arising from the ex parte order

dated 11.02.2016 passed by the Foreigners

Tribunal, Bongaigaon No. 2, Abhayapuri. The

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Tribunal recorded that notices had been served

upon the appellant and that the notice serving

police personnel were examined to confirm

service, but the appellant did not appear and the

reference was decided ex parte.

4.3. In the Civil Appeal arising out of SLP(C) Nos.

33488-33489 of 2017, Md. Akbar Ali v. Union of

India and Others, the appellant challenges the

order dated 22.11.2016 passed by the High

Court in WP(C) No. 6912 of 2016 and the order

dated 07.04.2017 passed in Review Petition No.

186 of 2016. The High Court recorded that notice

issued by the Tribunal had been served, that the

appellant’s brother had appeared and sought

time on the ground of the appellant’s illness, and

that the appellant thereafter remained absent,

whereupon the Tribunal passed the ex parte

order dated 14.03.2002.

4.4. In the Civil Appeal arising out of Diary No. 27282

of 2017, Abdul Subhan v. Union of India and

Another, the appellant challenges the judgment

dated 26.05.2017 passed by the High Court in

WA No. 166 of 2015. The record indicates that

the appellant had filed his written statement

before the Tribunal on 09.03.2009, after which

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the matter was fixed for production of further

documents, but the proceeding ultimately

culminated in an ex parte opinion against him.

4.5. In C.A. No. 2840 of 2024, Sonaullah Sheikh v.

Union of India and Others, the appellant

challenges the judgment dated 03.11.2016

passed by the High Court in WA No. 276 of 2013.

The High Court noticed that the appellant had

appeared before the Tribunal, filed his written

statement on 26.07.2012, and was granted

opportunities to adduce evidence, but the

Tribunal eventually passed the ex parte order

dated 04.04.2013 after the appellant and his

counsel failed to appear on subsequent dates.

4.6. In C.A. No. 3521 of 2024, Abdul Zabbar v. Union

of India and Others, the appellant challenges the

judgment dated 30.10.2014 passed by the High

Court in WA No. 189 of 2014, arising from the

common order dated 26.03.2014 passed in

WP(C) Nos. 6466 and 6465 of 2013. The

proceeding before the Tribunal resulted in an ex

parte opinion, and the later order of the Tribunal

records that the case was not one of non-receipt

of notice, since the appellant had received notice

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 8 of 45

and had responded by seeking time to file a

written statement.

4.7. In C.A. No. 3520 of 2024, Nurjahan Begum @

Nurjahan v. Union of India and Others, the

appellant challenges the judgment passed in WA

No. 326 of 2014, arising from the order dated

26.03.2014 passed in WP(C) No. 6465 of 2013,

whereby the ex parte opinion dated 28.02.2013

passed by the Foreigners Tribunal (Second),

Sonitpur, in F.T. Case No. 385 of 2011 was

affirmed. The High Court noticed that notice of

the proceeding had been served on the appellant

and that she had appeared on the first two dates

before the Tribunal, but thereafter remained

absent on all subsequent dates and failed to

adduce any evidence. The appeal was dismissed

on the ground that the appellant had failed to

discharge the statutory burden cast upon her.

4.8. In the Civil Appeal arising out of Diary No. 15744

of 2023, Samiran Nessa v. Union of India and

Others, the appellant challenges the judgment

dated 20.11.2019 passed by the High Court in

WP(C) No. 4351 of 2019, whereby the ex parte

opinion dated 05.03.2018 passed by the

Foreigners Tribunal (Second), Darrang,

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 9 of 45

Mangaldai, in F.T.(2) Case No. 1883 of 2014, and

the order dated 28.08.2018 rejecting the

application for setting aside the ex parte opinion

were affirmed. The High Court noticed that the

appellant had appeared before the Tribunal on

28.07.2014, later again appeared on 25.10.2017

and sought time to file her written statement, but

thereafter remained absent on consecutive

dates, leading to the ex parte opinion.

4.9. In C.A. No. 3751 of 2025, Ali Hussain v. Union

of India and Others, the appellant challenges the

judgment dated 16.07.2018 passed by the High

Court in WP(C) No. 3944 of 2018, arising out of

the order dated 24.01.2011 passed by the

Foreigners Tribunal, Nagaon, in F.T. Case No.

306 of 2007. The High Court recorded that notice

had been duly served upon the appellant, that

he had appeared before the Tribunal and prayed

for time to file his written statement, but

thereafter did not appear, whereupon the

Tribunal proceeded to pass the impugned order.

4.10. In C.A. No. 6870 of 2025, Abeda Khatun v. Union

of India and Others, the appellant challenges the

judgment dated 19.07.2016 passed by the High

Court in WP(C) No. 3103 of 2014, arising from

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 10 of 45

the order dated 04.06.2013 passed by the

Foreigners Tribunal, Goalpara, in F.T. Case No.

282/C/2010. The High Court noticed that after

receipt of notice, the appellant had appeared

before the Tribunal and filed her written

statement on 05.12.2012, but thereafter failed to

adduce evidence despite opportunities being

granted.

4.11. In Crl.A. No. 1334 of 2024, Kokila Begum v.

Union of India and Others, the appellant

challenges the judgment dated 16.09.2016

passed by the High Court in WP(C) No. 5495 of

2016, whereby the order dated 25.11.2013

passed by the Foreigners Tribunal No. 1,

Karimganj, in F.T. Case No. 370 of 2010 was

affirmed. The High Court recorded that the

appellant had appeared before the Tribunal on

19.03.2012 along with her advocate, but despite

several adjournments, neither filed her written

statement nor adduced evidence, whereafter the

reference proceeded ex parte from 19.04.2013.

4.12. In C.A. No. 5789 of 2025, Md. Usman Ali v.

Union of India and Others, the appellant

challenges the judgment dated 14.06.2016

passed by the High Court in WA No. 331 of 2015,

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arising from the dismissal of WP(C) No. 4055 of

2015 against the order dated 07.02.2013 passed

by the Foreigners Tribunal (Second), Morigaon,

in F.T.(D) Case No. 41 of 2010. The High Court

noticed that the appellant had appeared before

the Tribunal upon receipt of notice and filed his

written statement on 01.07.2011, but thereafter

defaulted in appearance, whereupon the

Tribunal proceeded ex parte and answered the

reference against him.

4.13. In C.A. No. 4858 of 2024, Azizul Hoque v. Union

of India and Others, the appellant challenges the

judgment dated 10.12.2018 passed by the High

Court in WP(C) No. 7956 of 2018, arising from

the order dated 09.07.2018 passed by the

Foreigners Tribunal No. 4, Nagaon at Juria, in

Misc. Case No. 14 of 2011. The High Court

noticed that the original ex parte opinion dated

16.06.2011 in F.T. Case No. 209 of 2007 had

been passed after the appellant had been served,

had appeared before the Tribunal, and had filed

his written representation on 13.04.2010, but

thereafter did not appear before the Tribunal.

4.14. In C.A. No. 2821 of 2024, Anowar Hussain v.

Union of India and Others, the appellant

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 12 of 45

challenges the judgment dated 03.09.2018

passed by the High Court in WP(C) No. 5902 of

2018, arising from the ex parte opinion dated

26.02.2015 passed by the Foreigners Tribunal

1st, Nagaon, in F.T. Case No. 315 of 2011. The

High Court noticed that after receipt of notice,

the appellant appeared before the Tribunal on

29.09.2014, but did not take any further step

before the Tribunal, and that his later

application for setting aside the ex parte order

was dismissed on 27.08.2018.

4.15. In the Criminal Appeal arising out of Diary No.

37766 of 2017, Jaan Mohammad v. Union of

India and Others, the appellant challenges the

judgment dated 25.02.2016 passed by the High

Court in WA No. 344 of 2015, arising from the

dismissal of WP(C) No. 539 of 2015 against the

Tribunal’s order dated 10.11.2009 in F.T. Case

No. 219 of 2008. The High Court recorded that

despite service of notice, the appellant did not

appear before the Tribunal, whereafter the

proceeding was taken up ex parte and the

reference was answered against him.

4.16. In Crl.A. No. 628 of 2025, Tasaddar Ali v. Union

of India and Others, the appellant challenges the

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 13 of 45

judgment dated 08.01.2018 passed by the High

Court in WP(C) No. 822 of 2017, whereby the

order dated 06.03.1992 passed by the Illegal

Migrants (Determination) Tribunal, Dibrugarh,

in Case No. 76 of 1989 was affirmed. The High

Court noticed that the Tribunal had proceeded

ex parte after notice was issued under the Illegal

Migrants (Determination by Tribunals) Act, 1983

and the appellant did not respond to the

proceeding.

4.17. In C.A. No. 5805 of 2025, Kashem Ali v. Union of

India and Others, the appellant challenges the

judgment dated 07.06.2017 passed by the High

Court in WP(C) No. 3346 of 2017, arising from

the ex parte opinion dated 13.02.2017 passed by

the Foreigners Tribunal No. 3, Nagaon, in F.T.

Case No. 368 of 2016 and the order dated

18.05.2017 rejecting the application for setting

aside the ex parte opinion. The High Court

noticed that the appellant had received notice

but did not appear before the Tribunal, and

further proceeded to examine the documents

placed before it before declining interference.

4.18. In the Civil Appeal arising out of SLP(C) No.

24686 of 2016, Makbul Hussain v. Union of

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India and Others, the appellant challenges the

judgment dated 19.01.2016 passed by the High

Court in WP(C) No. 755 of 2015, arising from the

order dated 14.07.2008 passed by the Foreigners

Tribunal, Nagaon, in F.T.(D) Case No. 317 of

2006. The High Court noticed that the appellant

had received notice, appeared before the

Tribunal on 13.03.2007, sought time to file his

written statement, and thereafter remained

absent on several dates, whereupon the Tribunal

proceeded ex parte.

4.19. In C.A. No. 1573 of 2025, Joshnara Begum v.

Union of India and Others, the appellant

challenges the judgment dated 07.08.2017

passed by the High Court in WP(C) No. 4672 of

2017, arising from the order dated 10.06.2016

passed by the Foreigners Tribunal No. 7,

Nagaon, in F.T. Case No. 40 of 2016. The High

Court noticed that the Tribunal proceeded ex

parte after recording that the appellant had

refused to accept notice and that the notice had

thereafter been served by hanging in the

presence of the village headman.

4.20. In SLP(C) No. 23494 of 2017, Md. Rafiqul Islam

v. Union of India and Others, the appellant

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challenges the judgment dated 05.01.2017

passed by the High Court in WP(C) No. 7457 of

2016, arising from the ex parte order dated

12.08.2010 passed by the Foreigners Tribunal

1st, Sonitpur, Tezpur, in F.T.(D) Case No. 168 of

2008. The High Court noticed that after service

of notice, the appellant appeared before the

Tribunal on 24.07.2008 and sought time to file

his written statement, but no written statement

was filed and he thereafter remained absent.

4.21. In C.A. No. 2836 of 2024, Anowara Bibi v. Union

of India and Others, the appellant challenges the

judgment dated 12.09.2018 passed by the High

Court in WP(C) No. 4179 of 2018, arising from

the order dated 04.07.2012 passed by the

Foreigners Tribunal No. 1, Goalpara, in F.T. Case

No. 1157/G/2006. The High Court noticed that

the appellant appeared before the Tribunal on

10.12.2010, sought time to file her written

statement, later filed the written statement on

30.05.2011, but thereafter remained absent on

several dates, whereupon the Tribunal answered

the reference against her.

4.22. In C.A. Nos. 1577-1578 of 2025, Gauranga Dev

Nath @ Gauranga Debnath v. State of Assam and

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 16 of 45

Others, the appellant challenges the judgment

dated 15.09.2016 passed in WA No. 299 of 2010

and the order dated 07.04.2017 passed in

Review Petition No. 176 of 2016. The High Court

noticed that notice had been served upon the

appellant, that he entered appearance along with

counsel, but thereafter neither appeared nor

filed his written statement, whereupon the

Foreigners Tribunal 1st, Morigaon, passed the ex

parte order dated 19.01.2009 in F.T.(D) Case No.

769 of 2006.

4.23. In C.A. Nos. 3403-3404 of 2025, Md. Nafiz

Kureshi v. Union of India and Others, the

appellant challenges the judgment dated

08.12.2015 passed by the High Court in WP(C)

No. 6591 of 2015 and the order dated

16.06.2016 passed in Review Petition No. 42 of

2016, arising from the ex parte order dated

12.10.2013 passed by the Foreigners Tribunal

2nd, Sonitpur, Tezpur, in F.T.(D.C.) Case No.

451 of 2009. The High Court noticed that

although the appellant alleged non-service of

notice, the Tribunal record indicated that he had

appeared on 26.10.2012 and sought time, but

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thereafter remained absent on subsequent

dates, resulting in the ex parte opinion.

4.24. In C.A. No. 5806 of 2025, Aijuddin v. Union of

India and Others, the appellant challenges the

judgment dated 04.10.2016 passed by the High

Court in WP(C) No. 4343 of 2016, arising from

the ex parte judgment dated 25.08.2010 passed

by the Foreigners Tribunal 1st, Sonitpur,

Tezpur, in F.T. Case No. 132 of 2008. The record

indicates that the appellant had appeared before

the Tribunal through counsel on 15.11.2008 and

sought time to file written statement, but the

written statement was not filed and the matter

was thereafter decided ex parte.

4.25. In C.A. Nos. 1574-1575 of 2025, Murtaza Begum

and Others v. Union of India and Others, the

appellants challenge the judgment dated

31.05.2016 passed by the High Court in WP(C)

No. 3031 of 2016 and the order dated

07.04.2017 passed in Review Petition No. 164 of

2016, arising from the opinion dated 30.09.2014

passed by the Foreigners Tribunal, Hojai, in F.T.

Case No. H/29 of 2008. The High Court noticed

that appellant no. 1 had appeared through

counsel and filed a written statement, but the

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appellants thereafter failed to adduce evidence

before the Tribunal, whereupon the reference

was answered against them.

4.26. In C.A. No. 1579 of 2025, Paritosh Chanda v.

Union of India and Others, the appellant

challenges the judgment dated 17.11.2016

passed by the High Court in WP(C) No. 6486 of

2014, arising from the ex parte order dated

10.07.2008 passed by the Foreigners Tribunal,

Mangaldai, in F.T. Case No. 650 of 2007. The

High Court noticed that notice had been served

personally upon the appellant on 15.05.2007,

but he remained absent on 12.06.2007 and on

the subsequent dates, whereafter the Tribunal

proceeded ex parte and declared him to be a

foreigner.

4.27. In the Criminal Appeal arising out of SLP(Crl.)

No. 10767 of 2018, Farida Begum @ Farida

Khatun v. Union of India and Others, the

appellant challenges the judgment dated

05.05.2016 passed by the High Court in WA No.

433 of 2015, arising from the order dated

25.08.2015 passed in WP(C) No. 5243 of 2011

and the ex parte order dated 30.07.2009 passed

by the Foreigners Tribunal, Sonitpur, Tezpur, in

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F.T.(D) Case No. 214 of 2007. The High Court

noticed that notices had been served on three

occasions through members of her family,

upheld the view that non-receipt of notice was

not established, and further examined the

documents produced in the writ proc eedings

before declining interference.

4.28. In C.A. Nos. 4305-4306 of 2025, Anowara

Khatoon @ Anowara Khatun v. Union of India

and Others, the appellant challenges the

judgment dated 07.03.2024 passed by the High

Court in WP(C) No. 7467 of 2023, arising from

the ex parte opinion dated 23.12.2019 passed by

the Foreigners Tribunal, Baksa at Tamulpur, in

F.T. Case No. 42/BAKSA/2019. The High Court

noticed that the appellant appeared before the

Tribunal through counsel on 29.06.2019, sought

time to file written statement, and thereafter

remained absent on several dates despite further

adjournments, whe reupon the Tribunal

proceeded to answer the reference against her.

5. From the above narration, it is clear that the cases are

not identical on facts. However, for the purpose of

deciding the common question arising in this batch,

they can be broadly grouped into three categories:

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5.1. The first category consists of cases where the

appellants did not appear before the Tribunal

despite the Tribunal or the High Court recording

service of notice. These matters are (i) C.A. No.

2820 of 2024, (ii) Civil Appeal arising out of

SLP(C) No. 9745 of 2017, (iii) C.A. No. 1579 of

2025, (iv) Crl.A. No. 628 of 2025, (v) C.A. No.

1573 of 2025 and (vi) Criminal Appeal arising out

of Diary No. 37766 of 2017.

5.2. The second category consists of cases where the

High Court, while considering the challenge to

the ex parte opinion of the Tribunal, proceeded

to examine or appreciate the documents and

material placed before it. These matters are

(i) C.A. No. 5805 of 2025 and (ii) Criminal Appeal

arising out of SLP(Crl.) No. 10767 of 2018.

5.3. The third category consists of cases where the

appellants had appeared before the Tribunal at

some stage, or had taken some step in the

proceeding, but thereafter the proceeding

continued in their absence and resulted in an ex

parte opinion. These matters are (i) Civil Appeals

arising out of SLP(C) Nos. 33488-33489 of 2017,

(ii) Civil Appeal arising out of Diary No. 27282 of

2017, (iii) C.A. No. 2840 of 2024, (iv) C.A. No.

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3521 of 2024, (v) C.A. No. 3520 of 2024, (vi) Civil

Appeal arising out of Diary No. 15744 of 2023,

(vii) C.A. No. 3751 of 2025, (viii) C.A. No. 6870 of

2025, (ix) Crl.A. No. 1334 of 2024, (x) C.A. No.

5789 of 2025, (xi) C.A. No. 4858 of 2024, (xii)

C.A. No. 2821 of 2024, (xiii) Civil Appeal arising

out of SLP(C) No. 24686 of 2016, (xiv) Civil

Appeal arising out of SLP(C) No. 23494 of 2017,

(xv) C.A. No. 2836 of 2024, (xvi) C.A. Nos. 1577-

1578 of 2025, (xvii) C.A. Nos. 3403-3404 of 2025,

(xviii) C.A. No. 5806 of 2025, (xix) C.A. Nos.

1574-1575 of 2025 and (xx) C.A. Nos. 4305-4306

of 2025.

6. The above classification is only for convenience. The

underlying concern in all the matters is whether the

declaration of a person as a foreigner, with the serious

consequences which follow such declaration, can be

sustained when the adjudication before the statutory

forum was ex parte or had become effectively ex parte.

7. In view of the above factual backdrop, the common

issue which arises for consideration is whether, in

proceedings under the Foreigners Act, 1946

(hereinafter referred to as “the 1946 Act”) and the

Foreigners (Tribunals) Order, 1964 (hereinafter

referred to as “the 1964 Order”), an opinion declaring

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a person to be a foreigner can be sustained where the

proceeding before the Tribunal was ex parte or had

become effectively ex parte, without a meaningful

examination of service of notice, opportunity of

hearing, the material forming the basis of the

reference, and the evidence adduced by the State. The

issue is not whether a Tribunal is powerless to

proceed ex parte in every case. The narrower and more

important question is whether an ex parte or

effectively ex parte proceeding can result in a

mechanical declaration of foreigner status without the

Tribunal satisfying itself that the minimum

requirements of lawful and fair adjudication have

been met.

PREVAILING LEGAL POSTION

8. Before examining the issue, it would be necessary to

peruse the statutory framework within which the

Tribunals exercise jurisdiction. The proceedings in

question arise under the 1946 Act, and the 1964

Order.

9. Section 9 of the 1946 Act reads as follows:

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“9. Burden of proof. If in any case not

falling under section 8 any question

arises with reference to this Act or any

order made or direction given

thereunder, whether any person is or is

not a foreigner of a particular class or

description the onus of proving that such

person is not a foreigner or is not a

foreigner of such particular class or

description, as the case may be, shall,

notwithstanding anything contained in

the Indian Evidence Act, 1872 (1 of

1872), lie upon such person.”

10. Moreover, Paragraph 3 of the 1964 Order deals with

the procedure for disposal of questions referred to the

Tribunal. For the purposes of the present

adjudication, the relevant portions of Paragraph 3

read as follows:

“3. Procedure for disposal of questions.

(1) The Tribunal shall serve on the

person to whom the question relates, a

copy of the main grounds on which he is

alleged to be a foreigner and give him a

reasonable opportunity of making a

representation and producing evidence

in support of his case and after

considering such evidence as may be

produced and after hearing such

persons as may desire to be heard, the

Tribunal shall submit its opinion to the

officer or authority specified in this

behalf in the order of reference.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 24 of 45

...

(7) In case where notice is duly served,

the proceedee shall appear before the

Foreigners Tribunal in person or by a

counsel engaged by him or her, as the

case may be, on every hearing before the

Foreigners Tribunal.

(8) The Foreigners Tribunal shall give the

proceedee ten days time to give reply to

the show-cause notice and further ten

days time to produce evidence in support

of his or her case.

...

(10) The Foreigners Tribunal shall take

such evidence as may be produced by

the concerned Superintendent of Police.

(11) The Foreigners Tribunal shall hear

such persons as, in its opinion, are

required to be heard.

(12) The Foreigners Tribunal may grant

adjournment of the case on any plea

sparingly and for reasons to be recorded

in writing.

...

(15) After the case has been heard, the

Foreigners Tribunal shall submit its

opinion as soon thereafter as may be

practicable, to the officer or the authority

specified in this behalf in the order of

reference.

(16) The final order of the Foreigners

Tribunal shall contain its opinion on the

question referred to which shall be a

concise statement of facts and the

conclusion.”

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 25 of 45

11. A bare perusal of Section 9 of the 1946 Act shows that

it undoubtedly places the burden upon the proceedee

to prove that he or she is not a foreigner. The provision

is couched in clear terms and operates

notwithstanding anything contained in the Indian

Evidence Act, 1872. The reason for such a statutory

burden is also understandable. Facts relating to birth,

parentage, residence, family lineage, migration, if any,

and documents supporting nationality are ordinarily

matters within the special knowledge and custody of

the person proceeded against.

12. However, the existence of a statutory burden under

Section 9 of the 1946 Act cannot be read to mean that

the Tribunal is relieved of its own obligation to

conduct a lawful adjudication. Section 9 does not

authorise a mechanical declaration. It does not permit

the reference to be accepted as conclusive merely

because it has been made. It also does not permit the

Tribunal to treat absence of the proceedee as a

substitute for examination of the material placed

before it. The burden on the proceedee operates within

a legal process. It does not replace the legal process

itself.

13. The burden under Section 9 of the 1946 Act must

therefore be understood in the context of the 1964

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 26 of 45

Order. Paragraph 3 of the 1964 Order requires that

the proceedee must be served with the main grounds

on which he or she is alleged to be a foreigner. The

expression “main grounds” is of significance. It cannot

be reduced to a bare assertion that the person is

suspected to be a foreigner. The proceedee must

know, at least in substance, the basis on which the

allegation is founded. Only then can the proceedee

meaningfully answer the reference and discharge the

burden cast upon him or her.

14. The procedure prescribed under Paragraph 3 of the

1964 Order also shows that the proceeding before the

Tribunal is not an administrative formality. The

proceedee has to be given an opportunity to file a

reply, produce evidence and be heard. The concerned

Superintendent of Police may also produce evidence.

The Tribunal may hear such persons as it considers

necessary. After the case is heard, the Tribunal is

required to submit its opinion. The final order must

contain a concise statement of facts and the

conclusion. These requirements are inconsistent with

any notion that the Tribunal may simply affirm the

reference upon non-appearance of the proceedee.

15. Even in a case where the proceedee fails to appear

despite service, the Tribunal continues to act as a

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 27 of 45

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. An ex

parte proceeding may dispense with the participation

of the absent party, but it does not dispense with

objective consideration and meaningful adjudication

by the Tribunal.

16. The statutory scheme, therefore, has two

complementary features. The first is that the

proceedee carries the burden of proving that he or she

is not a foreigner. The second is that the Tribunal

must ensure a fair procedure, meaningful notice,

consideration of material, and a reasoned opinion.

These features are not in conflict. They operate

together. The burden under Section 9 of the 1946 Act

arises and is discharged within the procedural

safeguards of Paragraph 3 of the 1964 Order.

17. The above understanding is fortified by the judgment

of this Court in Md. Rahim Ali @ Abdur Rahim v.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 28 of 45

State of Assam and Others

2. In that case, this Court

examined the operation of Section 9 of the 1946 Act

and Paragraph 3 of the 1964 Order in the context of a

declaration made by a Foreigners Tribunal. The Court

explained that the burden under Section 9 is not to be

understood as permitting the authorities to proceed

on a bare allegation or an unsupported suspicion. The

authority must possess some material basis for

initiating the proceeding, and the proceedee must be

informed of the substance of the case which he or she

is required to meet. The decision in Md. Rahim Ali

(Supra) is important for another reason. This Court

drew a clear distinction between the mere allegation

that a person is a foreigner and the “main grounds”

contemplated under Paragraph 3(1) of the 1964

Order. The expression “main grounds” requires

something more than a formal accusation. It requires

disclosure of the essential basis on which the

allegation is founded, so that the proceedee is not left

to answer an undefined suspicion. Without such

disclosure, the opportunity to file a representation

and produce evidence would be more illusory than

real.

2

2024 INSC 511

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 29 of 45

18. This Court in Md. Rahim Ali (Supra) also clarified that

Section 9 does not exclude the principles of natural

justice. The statutory burden placed upon the

proceedee operates only after the proceeding is

lawfully initiated and after the proceedee is placed in

a position to understand the case against him or her.

The burden cannot be shifted in a vacuum. A person

cannot be expected to prove the negative without

being told, with reasonable clarity, the material basis

on which he or she is alleged to be a foreigner. The

consequence of a declaration by a Foreigners Tribunal

was also discussed by this Court as it was held that

such a declaration is not a routine civil consequence.

It may lead to detention, deportation, separation from

family and community, and in a given case, even the

possibility of statelessness. This Court therefore

emphasised that the process by which such a

declaration is made must satisfy the minimum

requirements of fairness and must rest upon material

capable of supporting the conclusion.

19. These requirements also have a constitutional

foundation. Articles 14 and 21 of the Constitution of

India (hereinafter referred to as “the Constitution”)

read as follows:

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 30 of 45

“14. Equality before law. — The State

shall not deny to any person equality

before the law or the equal protection of

the laws within the territory of India.”

“21. Protection of life and personal

liberty. — No person shall be deprived of

his life or personal liberty except

according to procedure established by

law.”

20. It is necessary to lay emphasis on the language of both

these Articles. Article 14 of the Constitution uses the

expression “any person”. Article 21 of the Constitution

uses the expression “no person”. Neither provision is

confined to citizens. The protection of equality before

law, equal protection of laws, life and personal liberty

is, therefore, available to every person within the

territory of India. 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 sat isfy the

constitutional requirements of fairness,

reasonableness and non-arbitrariness.

21. This Court has consistently recognised that even a

foreigner is entitled to the protection of life and

personal liberty under Article 21 of the Constitution.

In Louis De Raedt v. Union of India

3, this Court

3

(1991) 3 SCC 554

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 31 of 45

held that the fundamental right of a foreigner is

available under Article 21 of the Constitution for “life

and liberty”, although the right to reside and settle in

India under Article 19(1)(e) of the Constitution is

confined to citizens. This distinction is important in

the present case. The State may regulate the entry,

stay and removal of foreigners in accordance with law,

but the person concerned is not placed outside the

protection of fair procedure.

22. The same principle was reiterated in National

Human Rights Commission v. State of Arunachal

Pradesh

4, where this Court rejected the contention

that persons whose citizenship was disputed could be

denied constitutional protection. The Court observed

that foreigners are entitled to the protection of Article

21 of the Constitution. The constitutional guarantee

of life and personal liberty, therefore, operates even at

the stage where the status of the person is itself under

inquiry.

23. The content of Article 21 of the Constitution was

thoroughly explained by this Court in Maneka

Gandhi v. Union of India

5. The Court held that the

mere prescription of some procedure does not satisfy

4

(1996) 1 SCC 742

5

(1978) 1 SCC 248

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 32 of 45

Article 21 of the Constitution. The procedure must be

“fair, just and reasonable” and cannot be “fanciful,

oppressive or arbitrary”. This principle is directly

attracted where a statute creates a mechanism for

determining whether a person is a foreigner. The fact

that the statute prescribes a special burden of proof

does not mean that the process can be unfair or

arbitrary.

24. Article 14 of the Constitution also upholds the content

of fair procedure. 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. Equal

protection of laws requires that the statutory

procedure be applied in a real and meaningful

manner. It is not enough that a notice is formally

issued or that an order is formally passed. 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.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 33 of 45

25. The principle of audi alteram partem, which literally

means that the other side must be heard, is one of the

two great limbs of natural justice. It is often expressed

in the maxim that no person shall be condemned

unheard. Its moral foundation was famously

explained in Cooper v. Wandsworth Board of

Works

6

, where the Court emphasised that even where

a statute is silent, a person whose rights or interests

are likely to be affected must ordinarily be afforded an

opportunity of being heard. The principle is, therefore,

not a mere rule of technical procedure. It is a rule of

fair play in action.

26. This Court has repeatedly emphasised that the rules

of natural justice are meant to secure justice and to

prevent miscarriage of justice. In A.K. Kraipak v.

Union of India

7, this Court explained that these rules

do not supplant the law, but supplement it, and that

their application depends upon the framework of the

statute and the nature of the power being exercised.

The said principle squarely applies to proceedings

before the Foreigners Tribunal, which exercises quasi-

judicial functions and returns an opinion carrying

serious civil consequences.

6

(1863) 14 CB (NS) 180

7

(1969) 2 SCC 262

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 34 of 45

27. In Canara Bank v. Debasis Das

8, this Court

explained that adherence to natural justice is of

supreme importance where a quasi -judicial body

determines disputes or where administrative action

involving civil consequences is undertaken. The Court

further emphasised that notice is the first limb of the

rule of audi alteram partem. A notice must be precise

and must reasonably apprise the person of the case

which he or she has to meet.

28. In proceedings before the Foreigners Tribunal, this

principle assumes particular importance. The person

proceeded against is often required to establish facts

relating to ancestry, residence, identity and family

linkage through old public documents. Such a person

cannot be expected to discharge the statutory burden

under Section 9 of the 1946 Act unless the main

grounds of the allegation are disclosed and a

meaningful opportunity is afforded to file a response

and produce evidence. The opportunity contemplated

by Paragraph 3 of the 1964 Order must therefore be

an effective opportunity, and not a merely formal one.

APPLICATION OF LAW TO THE PRESENT APPEALS

CATEGORY I – THOSE WHO NEVER APPEARED

BEFORE THE TRIBUNAL

8

(2003) 4 SCC 557

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 35 of 45

29. The above principles must now be applied to the three

categories identified earlier. We first take up the cases

falling in the first category, where the appellants did

not appear before the Tribunal despite the Tribunal or

the High Court recording service of notice.

30. In this category, the Tribunal was not bound to keep

the proceeding pending indefinitely. Paragraph 3(7) of

the 1964 Order expressly contemplates that where

notice is duly served, the proceedee shall appear

before the Foreigners Tribunal in person or through

counsel on every date of hearing. Therefore, where the

record shows due service and the proceedee fails to

appear, the Tribunal may proceed further in

accordance with law.

31. However, Paragraph 3(7) cannot be read in isolation.

It must be read with Paragraph 3(1), which requires

that the proceedee be served with the main grounds

on which he or she is alleged to be a foreigner and be

given a reasonable opportunity of making a

representation and producing evidence. It must also

be read with Paragraph 3(10), which requires the

Tribunal to take such evidence as may be produced

by the concerned Superintendent of Police, and

Paragraph 3(16), which requires the final order to

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 36 of 45

contain the opinion of the Tribunal together with a

concise statement of facts and the conclusion.

32. Thus, even where the proceeding is ex parte, the

Tribunal is still required to perform an adjudicatory

function. The non-appearance of the proceedee may

deprive him or her of the opportunity to lead evidence,

but it does not relieve the Tribunal of the obligation to

examine whether the reference is supported by the

material produced by the State. Section 9 of the 1946

Act places the burden upon the proceedee, but that

burden does not convert the absence of the proceedee

into proof of the allegation. The Tribunal must still

apply its mind to the main grounds, the proof of

service, the evidence placed before it and the question

referred.

33. The matters falling in this category show that the

appellants have been declared foreigners without any

contest on their behalf before the Tribunal. Having

regard to the grave consequences of such declaration,

and having regard to the statutory requirement that

even the final order of the Tribunal must contain a

concise statement of facts and conclusion, we are of

the view that these matters deserve to be remitted to

the concerned Tribunals for fresh consideration. This

opportunity shall be granted only once and shall

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 37 of 45

remain subject to strict conditions so that the remand

is not used to delay the proceedings.

CATEGORY II – EVIDENCE APPRECIATION BY

HIGH COURT

34. We now turn to the second category, where the High

Court, while examining the challenge to the ex parte

opinion of the Tribunal, proceeded to examine or

appreciate the documents and material placed before

it.

35. The principle applicable to the first category applies

with equal force to this category, though in a different

manner. If even an ex parte opinion of the Tribunal

must reflect an independent examination of the

reference, the main grounds, the State evidence and

the conclusion required under Paragraph 3(16) of the

1964 Order, then the statutory adjudication

contemplated by the 1964 Order cannot ordinarily be

substituted by a first-time factual appreciation in writ

proceedings.

36. Paragraph 3 of the 1964 Order clearly identifies the

Tribunal as the forum before which the factual inquiry

has to be undertaken. Paragraph 3(1) gives the

proceedee an opportunity to make a representation

and produce evidence. Paragraph 3(10) requires the

Tribunal to take such evidence as may be produced

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 38 of 45

by the concerned Superintendent of Police. Paragraph

3(11) empowers the Tribunal to hear such persons as

it considers necessary. Paragraphs 3(15) and 3(16)

require the Tribunal to return its opinion with a

concise statement of facts and conclusion. These

provisions show that the Tribunal is not merely a

forwarding authority. It is the primary adjudicatory

forum for deciding the question referred.

37. In matters concerning nationality, the evidence often

relates to ancestry, family linkage, residence, identity,

electoral records and other public documents. Such

material may require proof, explanation, comparison,

and where necessary, rebuttal. The burden under

Section 9 of the 1946 Act is also to be discharged

before the Tribunal. The State evidence is likewise to

be placed before and considered by the Tribunal.

Therefore, where the proceeding before the Tribunal

was ex parte and the documents relied upon by the

proceedee were not tested before the statutory forum,

the High Court should not ordinarily become the first

forum for appreciation of such material.

38. In the matters falling in this category, the High Court

examined the documents and material placed before

it while declining interference with the ex parte

opinion of the Tribunal. Such an exercise, in the facts

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 39 of 45

of the present batch, cannot cure the absence of a

proper adjudication before the Tribunal under

Paragraph 3 of the 1964 Order. The appropriate

course is to remit these matters to the concerned

Tribunals, so that the appellants may produce their

material, the State may adduce its evidence, and the

Tribunal may return a fresh opinion in accordance

with law.

CATEGORY III – APPELLANT LEFT MIDWAY OF

THE TRIBUNAL PROCEEDINGS

39. We now turn to the third category, where the

appellants had appeared before the Tribunal at some

stage, or had taken some step in the proceeding, but

thereafter the proceeding continued in their absence

and culminated in an ex parte opinion.

40. This category stands on a slightly different footing

from the first category. Here, the appellants were

aware of the proceedings and had, in many cases,

either appeared before the Tribunal, sought time, filed

a written statement, or participated through counsel.

Paragraph 3(7) of the 1964 Order places an obligation

upon a proceedee, once notice is duly served, to

appear before the Tribunal on every date of hearing

either in person or through counsel. Paragraph 3(8)

provides the time within which the proceedee is to

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 40 of 45

reply to the show cause notice and produce evidence.

Paragraph 3(12) further makes it clear that

adjournments are to be granted sparingly and for

reasons to be recorded.

41. Therefore, where a proceedee appears before the

Tribunal but thereafter defaults, the Tribunal cannot

be faulted merely for declining to grant repeated

adjournments or for proceeding further in accordance

with law. The statutory scheme expects diligence from

the proceedee, particularly because the burden under

Section 9 of the 1946 Act lies upon him or her. A

person who has entered appearance cannot treat the

proceeding casually or frustrate the adjudication by

remaining absent at the stage of evidence.

42. However, the default of the proceedee does not alter

the character of the adjudication which the Tribunal

is required to undertake. Paragraphs 3(15) and 3(16)

of the 1964 Order continue to apply with full force.

The Tribunal must still submit its opinion after the

case has been heard, and the final order must contain

a concise statement of facts and the conclusion. The

opinion must reflect application of mind to the

question referred, the material placed by the State,

and such material as may already be on record on

behalf of the proceedee.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 41 of 45

43. In the matters falling in this category, the proceedings

had become effectively ex parte at the stage when the

appellants were required to continue their defence or

adduce evidence. The consequence is that the

declarations against them were made without a

complete adjudication on the material which they

seek to place before the statutory forum. In view of the

serious consequences which follow such declarations,

and in order to ensure that the determination of

status is made after a complete and reasoned

adjudication, we consider it appropriate to remit these

matters also to the concerned Tribunals.

44. This remand is not to be understood as approval of

the conduct of the appellants in defaulting before the

Tribunal. It is granted only as one final opportunity,

keeping in view the nature of the determination and

the consequences which may follow. The appellants in

this category shall therefore be required to appear

before the concerned Tribunals, file their written

statements and documents within the time granted,

and cooperate with the proceedings without seeking

unnecessary adjournments. If they fail to do so, the

Tribunal shall be at liberty to proceed in accordance

with law.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 42 of 45

CONCLUSION

45. Before issuing the operative directions, we consider it

necessary to clarify the limited scope of the present

judgment. We have not examined the merits of the

claim of citizenship set up by any of the appellants.

We have not expressed any opinion on the

genuineness, admissibility, relevance or sufficiency of

any document relied upon by them. Those questions

must be decided by the concerned Tribunals

independently, on the basis of the evidence which may

be produced before them and in accordance with law.

46. Citizenship and foreigner status occupy a field of high

constitutional and legal significance. Article 11 of the

Constitution preserves the power of Parliament to

make provisions with respect to the acquisition and

termination of citizenship and all other matters

relating to citizenship. Separately, the 1946 Act and

the 1964 Order provide the statutory mechanism

through which questions as to whether a person is or

is not a foreigner are referred to and determined by

the Tribunal. The State has a legitimate and

compelling interest in ensuring that persons who are

not legally entitled to claim Indian citizenship do not

secure such status by misuse of process, by false

claims, or by taking advantage of procedural delays

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 43 of 45

47. At the same time, the determination of such status

must be made through a process which is fair, lawful

and reasoned. The statutory burden under Section 9

of the 1946 Act remains fully applicable. The remand

being directed by this Court is not intended to dilute

that burden, nor is it intended to confer any equity in

favour of a person who is unable to establish his or

her claim in accordance with law. It is only to ensure

that the serious consequence of being declared a

foreigner follows from an adjudication which satisfies

the requirements of the 1946 Act, the 1964 Order, and

the constitutional mandate of fairness.

48. Accordingly, the impugned judgments and orders

passed by the High Court in all these matters are set

aside. The corresponding opinions and orders passed

by the concerned Foreigners Tribunals or the

erstwhile Illegal Migrants (Determination) Tribunals

are also set aside.

49. The matters are remitted to the concerned Foreigners

Tribunals for fresh adjudication in accordance with

law. The concerned Tribunals shall decide the

references afresh, uninfluenced by any observation

made either by the High Court in the impugned

judgments or by the Tribunals in the earlier opinions.

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 44 of 45

50. The appellants shall appear before the concerned

Tribunals within four weeks from the date of this

judgment. Upon their appearance, the concerned

Tribunals shall permit them to file their written

statements, documents and affidavits of evidence

within such time as may be fixed by the Tribunal. The

time so granted shall be reasonable, but shall not be

extended except for sufficient cause to be recorded in

writing.

51. The State and the concerned reference authority shall

also be at liberty to produce such material and adduce

such evidence as may be permissible in law. The

Tribunals shall thereafter consider the material

produced by both sides and return fresh opinions in

terms of the 1946 Act and the 1964 Order.

52. The appellants shall cooperate with the proceedings

and shall not seek unnecessary adjournments. If any

appellant fails to appear before the concerned

Tribunal within the time granted by this Court, or

having appeared, fails to cooperate with the

proceedings, it shall be open to the concerned

Tribunal to proceed further in accordance with law.

53. Until fresh opinions are rendered by the concerned

Tribunals, no coercive steps shall be taken against the

appellants on the basis of the opinions which have

C.A. NO.2820/2024 WITH CONNECTED MATTERS Page 45 of 45

been set aside by this judgment, subject to the

appellants appearing before the concerned Tribunals

and cooperating with the proceedings.

54. The concerned Tribunals shall make an endeavour to

decide the references as expeditiously as possible,

preferably within six months from the date on which

the appellants first appear before them pursuant to

this judgment.

55. The appeals are allowed in the above terms.

56. Pending applications, if any, shall stand disposed of.

………………………………..J.

[VIKRAM NATH]

………………………………..J.

[SANDEEP MEHTA]

NEW DELHI;

JULY 13, 2026