An Ex Parte Order from 1997, Discovered in 2019: The Supreme Court Reopens 27 Foreigner Cases

Article summary

A Supreme Court bench of Justices Vikram Nath and Sandeep Mehta has set aside a batch of Gauhati High Court judgments that upheld the declaration of 27 individuals in Assam as foreigners, holding that questions of citizenship carry profound constitutional significance and cannot be decided without a fair, lawful and reasonable procedure. The facts illustrate the problem: the Foreigners Tribunal order in the lead cases of Sabitri Dey and Sambhu Dey was passed ex parte in May 1997, the petitioners say they became aware of it only in 2019 — a gap of some twenty-three years — and the High Court declined relief in 2020. The Court held that ex parte proceedings demand greater rather than lesser judicial scrutiny, and that documentary evidence must be examined on its merits rather than rejected for procedural defects. It remanded all 27 cases to the concerned Foreigners Tribunals for fresh adjudication with a proper opportunity to lead evidence, directed that no coercive action be taken in the meantime, and expressly recorded no opinion on the merits of anyone's claim to citizenship. It also acknowledged the government's legitimate interest in preventing misuse of the citizenship process, while holding that this cannot come at the cost of a fair hearing.