The Supreme Court’s ruling on Monday, affirming that the status of an individual’s citizenship must rest on a “fair, lawful, and reasoned process”, is a welcome intervention at a time when the criteria and methods used to determine citizenship remain unclear and contentious. It set aside verdicts by the Gauhati High Court that upheld foreigners tribunals’ rulings branding 27 Assam residents as foreign nationals. A bench of Justices Vikram Nath and Sandeep Mehta observed that decisions on citizenship and foreigner status hold significant constitutional weight, and that the state’s objective of preventing illegal immigration must not come at the cost of procedural fairness. The apex court rejected the High Court’s reasoning that the tribunals were right to rule against the appellants simply because they failed to appear despite being served notices. The High Court had relied on Section 9 of the Foreigners Act, which places the onus of proving citizenship on the individual concerned.

How does a person prove her citizenship when the concept is not clearly defined, and the required documents are unspecified? The petitioners argued that they were unaware of the tribunal’s proceedings, which relied on an Enquiry Officer’s hearsay rather than substantive proof. This raises a critical question: can individuals be declared foreigners and stripped of their fundamental rights through ex parte proceedings solely due to their absence from court, especially when they possess official documents that support their claim to Indian citizenship?

Foreigners’ tribunals have been criticised earlier for arbitrariness and bias, stripping individuals of their citizenship over issues such as minor spelling discrepancies or brief memory lapses. Even a war veteran who served the nation for decades has been declared a foreigner. The Citizenship Act defines national identity, but its practical execution remains obscure to the public. Notably, the Election Commission of India (ECI)’s Special Intensive Revision (SIR) of electoral rolls employs a similarly exclusionary mechanism. By shifting the burden of proof onto the individual, the Commission now requires new voters to produce documents proving their parents were part of the previous SIR before they are allowed to enrol as voters. In both voter registration and citizenship determination, the state’s focus has shifted from inclusion to exclusion, making bureaucratic processes more protracted. The Supreme Court, regrettably, allowed the ECI to proceed with this undemocratic exercise. Given the procedural barriers and complexities, it is unlikely that there will be consensus on what constitutes a truly “fair, lawful, and reasoned” process to resolve citizenship issues. (Source: DH)