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 while ruling that a "grave miscarriage of justice" had taken place in the case [Md Rahim Ali @ Abdur Rahim vs State of Assam and Ors].
A Bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah said the pleadings and record are silent regarding the basis on which the Police in 2004 had initiated proceedings against Md Rahim Ali.
"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 but 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 said.
The Court further observed that it was incumbent upon the police to provide details as to how it had 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.
Ali had earlier challenged the decision of Foreigners Tribunal before the Gauhati High Court. Though the High Court had initially stayed the operation of tribunal's order, his plea was dismissed in November 2015.
This led to the instant appeal before the Supreme Court.
The Court, while analysing the case, asked 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'."
Having found material for such suspicion absent in this case, the Court observed that the State cannot proceed in such manner and neither can the top court countenance such approach.
"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," it added.
While it clarified that evidentiary value of the material at such stage would not be required to be gone into, the Court also said that mere allegation, as vague as to mechanically reproduce simply the words which mirror the provisions of law, cannot be permitted.
The Court asserted that the person suspected has to be made available of the information and material available against him.
"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 said.
In the present case, the Court said the authorities gravely faulted by construing the words ‘a copy of the main grounds on which he is alleged to be a foreigner’ in the rules to mean the allegations levelled 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 also clarified that it would not imply that strict proof of such allegation has to be given to the accused person.
Only the material on which such allegation is founded has to be shared with the person, it said.
"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.
In the present case, the Court noted that the evidence produced before the tribunal had been disbelieved only on the ground of mismatch of actual English spelling of the names and discrepancy in dates.
In this regard, the Bench opined that a casual entry by the enumerators cannot visit the appellant (Ali) with dire consequences.
Pertinently, it also observed 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.
"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".
The Court thus 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.
Advocates Kaushik Choudhury, Saksham Garg, Parth Davar, Shaantanu Jain, and Jyotirmoy Chatterjee appeared for the appellant Mohd Rahim Ali.
Advocates Shuvodeep Roy, Sai Shashank, and Deepayan Dutta appeared for the State of Assam.
[Read Judgment]