Justice Sanjay Karol, Justice Manoj Misra, Supreme Court
Inclusion Of Name In Draft NRC Would Not Annul Foreigners Tribunal’s Declaration That A Person Is A Foreigner: Supreme Court
|The appeal before the Supreme Court arose from the declaration that the appellant is a foreigner.
The Supreme Court upheld an order declaring a person to be a foreigner and observed that, consequent to the Tribunal's declaration that the person is a foreigner, his name could not have been included in the draft NRC. The Bench held that even if the name had been included, it would not annul the Tribunal's declaration.
The appeal before the Apex Court arose from the proceedings under the Foreigners Act, 1946, whereunder, the appellant was declared a foreigner, who entered India illegally after March 25, 1971. Aggrieved by the declaration that the appellant is a foreigner and dismissal of the writ petition challenging such declaration, the appeal was filed.
The Division Bench of Justice Sanjay Karol and Justice Manoj Misra said, “For the reasons detailed above, the inclusion of the name of the appellant in the draft NRC would have no bearing on the order passed by the Tribunal, affirmed by the High Court, declaring the appellant a foreigner.”
Factual Background
Based on a preliminary enquiry, the Superintendent of Police (Border), Sivasagar made a reference to the Tribunal, alleging that the appellant is a foreigner illegally residing in Assam, India. The appellant contested the notice by filing a written statement stating that he is the son of Md. Majut Ali, a resident of Daobhangi village under Gauripur police station in the district of Dhubri. It was stated by the appellant that his grandfather’s name was enlisted in the voters list of 1966 whereas his grandmother’s name was enlisted in the voters list of 1970. To support his case, the appellant submitted school certificate, extract of voters lists of 1966, 1970, 2010, 2016 in respect of the Gauripur Assembly Constituency.
The Tribunal held the appellant to be a foreigner and also observed that the place of residence of Joynal Abdin as reflected in the voter lists was at variance with what was claimed by the appellant. The Tribunal thus opined that it was difficult to hold that Joynal Abdin Seikh, son of Rahim Munshi of Daobhangi village and Joynal Abdin Seikh, son of Rahim Seikh of Kekurchar village, were one and the same person. When the matter reached the High Court, it was observed that the petitioner had failed to discharge his burden under section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India.
Reasoning
The Bench noted that the Tribunal as well as the High Court, had considered the documents and had found that those earlier voter lists related to a person located in some other village than the one in which the appellant claimed to be a resident. In such circumstances, the appellant ought to have stated in his affidavit, or demonstrated by some documentary evidence, that his ancestors had migrated from that village to the other village where the appellant was reported to be residing, but, according to the Tribunal, there was no such claim by the appellant in his affidavit.
“For the foregoing reasons, if the Tribunal and the High Court held that the appellant could not discharge his burden of proving that he is not a foreigner, the view taken by them cannot be held perverse, or manifestly erroneous, or unreasonable, as to warrant interference under Article 136 of the Constitution of India”, it said.
The Bench further noticed that the draft NRC was published in 2018, and by that time, the appellant had already been declared a foreigner by the Tribunal. Reference was made to the judgment in Abdul Kuddus vs. Union of India and others (2019), where the Court held that the competent authority referred to in sub-para (2) to para 3 of the Schedule appended to Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, would be, the Tribunal constituted under the Foreigners Act.
The Bench held, “In view of the decision of this Court in Abdul Kuddus (supra), firstly, consequent to the declaration by the Tribunal that appellant is a foreigner, the name of the appellant could not have been included in the draft NRC and, secondly, even if it has been included, it would not annul the declaration made by the Tribunal.”
Thus, finding no merit in this appeal, the Bench dismissed the appeal and ordered, “Consequently, the appellant shall be treated and dealt with as a foreigner.”
Cause Title: Rofiqul Hoque v. The Union of India & Ors. (Neutral Citaiton:2025 INSC 730)