Proceedee bears burden to prove Indian citizenship in ex-parte Foreigners Tribunal case, Gauhati High Court rules

The petitioner challenged an ex parte opinion of the Foreigners Tribunal, Bongaigaon No. 2, declaring him a foreigner who entered India after 25 March 1971.

The Tribunal record indicated repeated attempts to serve notice, including service on the petitioner’s father as an adult family member, and that the petitioner did not appear or file a written statement.

The petitioner said he learned of the proceeding after his name did not appear in the 2026 voter list; he acknowledged that notice had been served on his father while he was away, but disputed the sufficiency of that service.

He relied on Savitri Dey @ Swasthi Dey v. Union of India to argue that the Tribunal was required to assess and discuss the State’s materials despite the ex parte proceeding.

1. Whether the Tribunal’s ex parte opinion should be set aside because notice was served on the petitioner’s father while the petitioner was absent.

2. Whether Savitri Dey @ Swasthi Dey required the Tribunal to discuss the State’s materials and pass a reasoned opinion notwithstanding the petitioner’s non-appearance.

3. Whether, in the proceeding under the Foreigners Act and the Foreigners (Tribunals) Order, the State was required to lead evidence first to establish that the petitioner was a foreigner.

Section 9 of the Foreigners Act, 1946 places on the person whose nationality is in question the burden of proving that they are not a foreigner.

The Court relied on Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which explained that citizenship-related facts are ordinarily within the person’s knowledge and support placing that burden on the person concerned.

Under paragraphs 3(5)(b) and 3(5)(c) of the Foreigners (Tribunals) Order, 1964, where the proceedee is not found at the address, notice may be served on an adult family member, whose signature or thumb impression is to be obtained as proof of service.

Paragraph 4 of the Order gives Tribunals the powers of a civil court, and Order VIII, Rule 10 of the Code of Civil Procedure permits judgment where a party fails to file a written statement.

The Court also referred to Section 6-A of the Citizenship Act, 1955, concerning the Assam-specific citizenship framework and the role of a Tribunal’s opinion in detection of a foreigner.

It distinguished Savitri Dey @ Swasthi Dey on the facts and legal provisions applicable in this case.

The Court found that notice had been served on the petitioner’s father in accordance with paragraphs 3(5)(b) and 3(5)(c), and that the petitioner had been given repeated opportunities to appear and file a written statement.

The petitioner did not establish that his father had intentionally withheld notice or otherwise explain why he failed to contest the proceeding.

Applying Section 9 of the Foreigners Act, the Court held that the burden remained on the petitioner to establish Indian citizenship and that the State was not required to lead evidence first.

It considered the Tribunal’s reference to the record and the Investigation Officer’s report sufficient in the circumstances, and held that Savitri Dey did not govern the case.

It made no order as to costs and directed that the consequences of the opinion should follow.