A cryptic ex parte opinion requires remand for fresh adjudication despite the proceedee’s defaults.

The petitioner challenged the opinion dated 08.06.2015 passed by the Foreigners’ Tribunal (3rd), Darrang, Mangaldai in F.T. Case No. 2939/12, declaring her a foreigner who had entered Assam and India after 25.03.1971.

The reference arose from S.P. Enquiry No. 06/2012 concerning suspicion regarding her nationality.

Although the petitioner initially appeared and filed a written statement, she subsequently failed to appear on several dates. After issuing a show-cause notice, the Tribunal proceeded in her absence and passed the impugned opinion.

Before the High Court, she claimed to be an elderly, poor and illiterate woman who had left for Kerala in search of livelihood and became aware of the ex parte opinion only during the NRC process in August 2019.

The petitioner relied, inter alia, on a 1966 voters’ list showing her and her family members, including her husband Khalu Sk., as voters; her age was recorded as 21 years.

The High Court found the Tribunal’s opinion to be cryptic and considered remand appropriate.

1. Whether the Foreigners’ Tribunal was justified in declaring the petitioner a post-25.03.1971 foreigner after she failed to appear during the subsequent stages of the proceeding.

2. Whether, in light of the cryptic nature of the Tribunal’s opinion and the petitioner’s reliance on potentially relevant pre-1971 electoral records, the matter ought to be remanded for fresh adjudication.

3. Whether the petitioner should be protected from coercive detention or deportation during the remanded proceedings.

The High Court exercised jurisdiction under Article 226 of the Constitution to review the Foreigners’ Tribunal’s opinion.

Under Section 9 of the Foreigners Act, 1946, the burden lies on the proceedee to establish that she is not a foreigner.

Paragraphs 3(7), 3(8), and 3(12) of the Foreigners’ Tribunals Order, 1964 require a proceedee to appear on each date, file a reply and produce evidence within the prescribed time, while permitting adjournments only sparingly and for recorded reasons.

Paragraph 3(14) requires proceedings to be concluded within 60 days.

Relying on Sabitri Dey @ Swasthi Dey v. Union of India, 2026 INSC 694, the Court held that proceedings initially contested but later continued in the proceedee’s absence may effectively become ex parte; although repeated defaults do not entitle a proceedee to indefinite adjournments, the Tribunal must still record the relevant facts, apply its mind to the issues referred, and consider the materials available on record.

The Court acknowledged that the petitioner had defaulted despite appearing earlier and that the Tribunal could not be faulted merely for refusing repeated adjournments or proceeding in accordance with law.

However, the impugned opinion merely recorded the petitioner’s absence and concluded that she was a post-25.03.1971 foreigner, without adequately setting out the facts, considering the materials on record, or undertaking a reasoned adjudication.

The petitioner’s reliance on the 1966 voters’ list constituted prima facie material requiring consideration in determining her nationality.

Applying the principles in Sabitri Dey, the Court held that the petitioner’s defaults did not relieve the Tribunal of its obligation to render a proper, reasoned determination.

In the circumstances, remand would best serve the interests of justice while preserving the petitioner’s opportunity to discharge the burden under Section 9 of the Foreigners Act.

The petitioner was directed to appear before the Tribunal on or before 29.09.2026 to receive further orders.

Until completion of the fresh adjudication, she was protected from coercive action by way of detention or deportation.

The writ petition was accordingly allowed and disposed of.