CASE NAME: Sabitri Dey @ Swasthi Dey & Others Versus Union of India & Others
CITATION: CDJ 2026 SC 1140 / 2026 INSC 694
CASE NUMBER: Civil Appeal No(s). 2820 of 2024 with Civil Appeal No(s). 2821 of 2024, C.A. No. 2840 of 2024, C.A. No. 3521 of 2024, etc.
COURT: Hon’ble Supreme Court of India
DATE OF JUDGMENT: 13th July, 2026
QUORUM: Hon’ble Mr. Justice Vikram Nath & Hon’ble Mr. Justice Sandeep Mehta
FACTS
The current list of appeals relates to Foreigners Tribunals of the State of Assam (and, in a few instances, the erstwhile Illegal Migrants (Determination) Tribunals). In all these aspects, the appellants were found to be foreigners and the aforesaid opinions were reinforced by the High Court, Guwahati of Assam, Nagaland, Mizoram and Arunachal Pradesh. In each of the appeals the complaint was that their opinions as foreigners had been issued in proceedings which were ex parte or were so conducted as to be in effect ex parte and thereby to deny them a fair and adequate opportunity to address the question of reference. The Supreme Court for ease of disposal classified the diverse set of appeals into three classes: In cases where appellants had not appeared before the Tribunal even after the notice was recorded, the same were classified under Category I. Those appeals where appellants appeared before the Tribunal despite the notice being recorded were classified as Category I. Category II: Where the High court, while hearing Ex parte Opinion, went into the appreciation of factual documents for the first time. Category III: Appeals filed by appellants in a preliminary stage or written statements and later continued without them in the absence, which comes up with an ex parte opinion.
LEGAL PROVISIONS
- Sections 8 & 9 of the Foreigners Act, 1946.
- Paragraph 3 [Sub-paragraphs (1), (7), (8), (10), (11), (12), (15), and (16)] of the Foreigners (Tribunals) Order, 1964.
- Articles 14 and 21 of the Constitution of India.
- The Illegal Migrants (Determination by Tribunals) Act, 1983.
Case Laws Referred:
- Md. Rahim Ali @ Abdur Rahim v. State of Assam and Others, 2024 INSC 511.
- Louis De Raedt v. Union of India, (1991) 3 SCC 554.
- National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742.
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
- Cooper v. Wandsworth Board of Works, (1863) 14 CB (NS) 180.
- A.K. Kraipak v. Union of India, (1969) 2 SCC 262.
- Canara Bank v. Debasis Das, (2003) 4 SCC 557.
ISSUES
- Whether an Opinion issued under the Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 that a person is a foreigner is sustainable in an ex parte or in an apparently ex parte proceedings before the Tribunal.
- Whether this statutory obligation of proof under Section 9 of the Foreigners Act, 1946, absolves the Tribunal from responsibility to give fair procedure which is due to it, fair disclosure of “main grounds” and objective consideration of material put before it.
- Whether the High Court has the powers of a court of first institution in appreciation of the fact in the proceedings before the statutory Tribunal which were ex-parte.
ARGUMENTS
APPELLANT
It was the case of the advocates to be made on behalf of the appellants that the references were made mechanically without affording them a reasonable and effective opportunity to challenge the references. The matter was raised that the “main grounds” of allegation had not been disclosed to the proceedees, so as to enable them to adequately meet the statutory burden. They also asserted that the status of foreigners has serious constitutional implications such as detention, deportation, statelessness and required strict adherence to the principles of natural justice and fair procedure under Articles 14 and 21 of the Constitution.
RESPONDENT
The learned counsel appearing for the Union of India and Assam state contended that Section 9 of the Foreigners Act, 1946 clearly places the burden of proof in proving citizenship on the proceedee. Notices must be served on the proceedee, who is then “under a mandatory duty” to appear on each date of hearing, pursuant to Paragraph 3(7) of the 1964 Order. It was contended that if the proceeds were delinquent in their duty to comply, then the Tribunal has a legitimate basis for rendering ex parte opinions and that the Government has an interest in protecting against improper use of the process and in ensuring that those who are illegally here do not take advantage of the process.
ANALYSIS
The Supreme Court gave careful consideration to the relationship between the statute, natural justice and constitutional requirements. The Court said that Burden of Proof is imposed on the proceedee under Section 9 of the Foreigners Act, 1946, but the duty of Adjudication is on the Tribunal, which is a quasi-judicial body. The absence of the proceeds may not be considered as proof of the reference.
The requirements of “Main Grounds” Paragraph 3(1) of the 1964 Order require allegations to be made on material grounds and not just on a suspicion basis, giving the proceedee a real chance to rebut the allegations. The Court reiterated that the term ‘any person’ in Article 14 is unrestricted whereas the term ‘no person’ in Article 21 applies to all citizens and all non-citizens within the Indian territory.
In such a situation, the High Court in writ jurisdiction should not be in the first instance in the position of appreciating the factual evidence/documents for the first time as the Tribunal has acted ex parte. Under Paragraph 3(16) of the final order, the statement of facts and conclusions for Categories I & III should be short and concise, and should be derived from material submitted by the State.
In the case of Category II, the first time High Court appreciation for the first time removes the statutory inquiry from the adjudicator, it does not resolve any of the issues. When High Court appreciation is substituted for Tribunal adjudication in the case of Category II, it removes the statutory inquiry from the adjudicator and does not solve any problems.
JUDGEMENT
The Supreme Court granted the appeals and the High Court and the Foreigners Tribunals (earlier the IMDT) and the opinion/orders issued by them were quashed. The issues were referred back to the relevant Foreigners Tribunals for fresh adjudication on the basis of law. Appellants were called upon to appear before the respective Tribunals within four weeks from the date of the judgment for filing written statements and evidence. Protection was granted on an interim basis: No coercive action to be taken against appellants till fresh determination subject to their appearance and cooperation. Foreigners Tribunals were instructed to make the references as expeditiously as possible within 06 months from the date of the first appearance.
CONCLUSION
The ruling highlights that the burden of proof for citizenship lies on the citizen, but the process of determining citizenship status must follow procedural fairness and natural justice with life changing implications. An ex parte proceeding is not a procedure where parties are not involved, but it cannot be a procedure where the objective application of mind by the Tribunal is not involved.
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Sabitri Dey @ Swasthi Dey & Others Versus Union of India & Others
