19, Jul 2019 | Mrinmoy Dutta
Despite the passage of seven decades since the independence of the country, the debate on citizenship is far from over. The recent engagement with the construction of the National Register of Citizens(NRC) in the state of Assam, has again opened the flood gates of contestation on the citizenship question. Cardinal to this debate is the invocation of the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 which are seen as the pillars for both the detection and deportation of immigrants. This analysis intends to examine some provisions of the legislations and in particular, Section 9 of the Act.
The Foreigners Act, 1946, a pre-independence era legislation was enacted for regulating the entry, presence and departure of foreigners into and from India, section 2(a) of the Act defining a ‘foreigner’ to mean a person who is not a citizen. But, it is important to note that the Act, per-se does not prescribe any methodology for detection or any mechanism for identification of foreigners which makes the role of the foreigners’ tribunal cardinal to the understanding of the Act.
The formation of tribunals for the identification of foreigners only finds strength from the Foreigners (Tribunals) Order 1964 issued in exercise of powers under section 3 of the Act. The said order however, primarily leaves the procedure to be adopted for disposal of the proceedings to the discretion of the members. For a long time now, tribunals have been formed for the detection of perceived foreigners in the state of Assam, persons who are charged with illegally living in the state, perhaps for decades.
In actual fact, these ‘so called’ foreigners are mostly faceless human beings, without any apparent record of their “infiltration”. They are “charged” with having infiltrated predominantly from a specified territory, i.e. the present day Bangladesh. This charge is based on their ethnic character and their linguistic back ground even though such a similarity of both language and ethnicity is found from both sides of the border – in Assam/Bengal and Bangladesh. These ‘facts’ makes their ‘detection’ apparently more complex. These people, according to popular perception have entered India crossing the supposedly porous borders and have intermingled with the citizens of the country. We must remember, however that the borders are not entirely open and do not permit free entirely free access.
Section 9 of the Foreigners Act, 1946 has a very important bearing on the determinations made under the Act. In a nutshell, it stipulates that in a case not falling under section 8 of the Act, when there arises a question as to whether a person is a foreigner or not, the onus of proving that the person is not a foreigner is on the person concerned. Section 8 deals with the issue of determination of the nationality of two categories of foreigners (i) those having more than one nationality, (ii) those of uncertain nationality, by the central government. Section 9, therefore, by implication, excludes cases under section 8 and appears to pertain to foreigners, whose specific foreign nationality is attributable with a certain amount of certainty, but where the said foreigner disputes the allegation that he is a foreign national and claims to be citizen.
It is important to note that by definition the term ‘foreigner’ appears in Section 2 (a) of the Act, and means “a person who is not Indian Citizen”. Thus ‘foreigners’ in context of the statute appear to mean foreigners i.e. those who are not Indian citizens –on the face of it — without any requirement of elaborate exercise at identification, which becomes conspicuous by the absence of any detection machinery in the Act. It is also relevant to note that Section 9 does not deal with any question as to whether a person is an Indian Citizen or not, unlike Section 3(8) of the Immigration Act, 1971 which specifically refers to determination of a question as to whether a person is a British Citizen or not. This distinction though very subtle can have wide-ranging ramifications on the scope and manner of application of the Act in question.
Also noteworthy is the fact that citizenship in India is governed by the Citizenship Act, 1955. Though the Act prescribes how citizenship is acquired, it neither defines a citizen nor links citizenship of the natural born ones to the possession of any document, not even a birth certificate. It is only when citizenship is acquired by means of registration, naturalization or by descent, that citizenship requires some recognition and registration.
The onus of proof on the proceedee as envisaged under section 9 of the Foreigners Act, is what is called the reverse onus clause. In this context a look at some statutory provisions dealing with the reverse burden of proof, like section 113B of the Evidence Act, 1872, section 139 of the Negotiable Instruments Act, 1881, section 68J of the Narcotic Drugs and Psychotropic Substances Act, 1985, section 123 of the Customs Act, 1962, to name a few, reveal that the burden shifts to the accused only when certain indications/ingredients and conditions are found or on some happenings, leading to the presumption that the concerned offence has been committed. Section 118 of the Negotiable Instruments Act, 1881 also prescribes some presumptions which can be drawn based on the writings on the instrument. In fact, under none of these provisions, is the state absolved from the liability of establishing certain basic facts and presumption is raised only when certain foundational facts are established by the prosecution.
The Foreigners Act however neither envisages any presumption in law nor any irrebuttable presumption. Under such circumstances, for the question “as to whether a person is a foreigner or not” to arise there must be some positive materials indicating that the person is a foreigner or there must be some facts on record which can lead to drawl of presumption in a particular case that the person is a foreigner. A good example of the former category can be where there are materials to show that the person had entered the country with documents from another country and thereafter has overstayed the documents.
So far as the reversal of presumptions in those cases where positive materials are not available, are concerned, section 114 of the Evidence Act allows drawing of presumptions having regard to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, thereby defining the broad parameters within which presumptions can be drawn, which though leave the courts with a wide discretion to draw presumptions but the same is not unbridled.
In matters concerning the establishment of alienage, there may be circumstances where presumptions of alienage can be drawn, where the person concerned is caught infiltrating from another country. Such presumption can also be drawn if there are evidences that a person was born in a foreign country. In this context, it must be stated that the recognised presumption is on the continuance of the domicile of origin; the settled law being that one who asserts that the domicile of origin is lost, must prove such assertion 1. Therefore the above circumstances unless rebutted can be proof of alienage. It must be also be remembered that presumptions of facts cannot be drawn from presumptions and can only be drawn from facts 2 and thus vague and generalised presumptions — like the borders are porous making infiltration possible or that because some infiltrators have been caught while infiltrating— cannot lead to the presumption that the person proceeded against, in a specific case, is an infiltrator.
In the context of what is prescribed in Section 9, the fundamental issue that stands out is how and when the question as to whether a person is a foreigner or not should become a matter of adjudication before a judicial forum. Does such a question arise merely because there is suspicion in someone’s mind that a person may be foreigner or is it because some facts and materials having come to light reveal that the person may be a foreigner or where some surrounding facts can lead to a presumption that a person is a foreigner?
To look at these questions, a distinction has to be made between (i) people caught infiltrating into the country or people having entered into the country with documents have overstayed the period or people whose foreign birth is apparent leading to inference that they may be foreigners and (ii) person with regard to whom there are no materials which can lead to any inference that the person is a foreigner, even if the person appears to be a suspect.
While it is not difficult for the tribunals to assume jurisdiction and render opinion regarding the first category of people, serious complexities arise regarding adjudication of the second category.
In context of section 6A of the Citizenship Act, which has special reference to the state of Assam two pertinent questions that arise for adjudication are
(a) whether the person has indeed come from the specified territory, and if so,
(b) whether the person has come after 1.1.1966 or 25.3. 1971.
(Those entering from a specified territory after 1.1.1966 but before 25.3.1971, illegally, on identification are, under law, to be disfranchised for 10 years and those coming after 25.03.1971 are to be expelled/deported to the country of origin).
Both these questions are questions of fact. Judicial pronouncements have settled the law that suspicion however grave, cannot take the place of proof 3. Therefore, question of facts cannot be answered on surmise and conjecture and there must be some materials to answer these questions of fact, which must be either in the form of positive materials or facts from which presumptions can be drawn.
A look at the proceedings before the Foreigners Tribunals, however, would reveal that people predominantly from a particular linguistic community are being issued notices alleging that such person(s) have entered the territory of India after 1.1.1966 and /or after 25.3.1971.
The linguistic affinity of such people also exists with the second largest spoken language in the country (Bengali). It is also noticed that many notices issued by the tribunals are neither supported by any materials attributing linkage of the proceedee with the specified territory, nor by facts from which alienage can be presumed, except some vague reports that the person could not produce any documents of citizenship or with some names of some place of Bangladesh or at times with some statements by some witness that the person is an infiltrator without any material to back such allegations.
Once the notices are issued, since the onus is on the proceedee to show that he is not a foreigner, but an Indian Citizen, it is expected that a genuine citizen would be in a position to produce documents and evidence of his citizenship or rather his existence or legacy in the country linking him to a period prior to 25.3.1971.
There are more reasons why this process needs to be examined more minutely. Materials attributing alienage of a person or “facts” from which a presumption of alienage of a person, in particular, can be drawn can be the perfect set up for the question as to whether a person is a foreigner or not. The question really is whether the presumptions of alienage can be at all drawn simply because of a variation in the narrations of events by a person of his self and his/her legacy. Remember, this is a narration of events which may have taken place anytime in the span of the last five decades or more including in the years before his/her birth. Discrepancies abound in the various documents issued by public authorities. The “failure” to produce legally admissible documents showing a person’s existence and legacy going back almost five decades is Kafkaesque. This is even more so when there exists no particular document of citizenship that a natural born citizen must compulsorily possess and given the history of documentation in the country, the percentage of landless people, poor literacy rate, people below poverty line, and dismal records of birth registration till the 1990s, etc.
Can then therefore, a presumption of alienage be drawn from the “non-availability” of a person’s name in the voters list, when we are yet achieved 100 % enumeration of voters? What also cannot be be ignored is that many who might have survived the vagaries of nature (flood, famine, drought, plague) and could only just about salvage their precious lives over past decades are now perhaps confronted with the task of production of documents which have been tragically and irretrievably are lost.
A close reading of section 114 of the Evidence Act would reveal that the above circumstances cannot lead to a presumption of alienage as these discrepancies on their own cannot per-se neither can they link any person to any other country. With regard to “admissions” by a person that he is a Bangladeshi, in investigation reports, this too is a faulty premise when these investigations are conducted without adjudication. Once a person denies having made such an admission, the report losses its probative value and can neither be used as evidence, nor for that matter, can it be used to presume alienage. There can also be no presumption of fraud, misrepresentation or impersonation in case of discrepancies in documents or narrations, as the presumption is that of innocence. Moreover, such presumption even if made cannot also lead to presumption of alienage.
The law is clear; it’s the application that has been faulty. To the question as to whether a person is a foreigner or not to even arise, there must exist positive materials attributing alienage or facts which make the presumption of alienage so probable that any prudent man would believe these to exist. The presumption cannot be the suspicion of some one’s mind alone. The counter argument, that since the question as to whether a person is a foreigner of not even if based on mere suspicion, can be answered by a genuine citizen by showing materials of citizenship and therefore needs to be answered even without any materials attributing alienage, would be antithesis to the rule of law. Judicial time and energy cannot be used to decide the suspicions in someone’s mind or mere speculation. This would leave the judiciary reeling under piles of pending litigation and putting public exchequer to stress. Such an approach would also lead to utter chaos and turn the judicial process into tools of oppression, which settled law does not permit 4.
Settled law also does not permit questions of facts being decided on mere suspicion. When the parameters as to how any person’s citizenship can be determined has yet to evolve and the Citizenship Act has, itself, has not provided for any specific document as absolute proof of Citizenship, particularly for the natural born ones, double standards cannot apply.
Even if therefore, on the basis of some discrepancies (mentioned above), even if it is presumed that a person has “failed to prove his citizenship”, to say that the said person is a citizen of another country still falls under the realm of mere surmise. A person who is charged with being an alien, to be automatically held to be a Bangladeshi Citizen/national, without any material to support such a charge — on his failure to “show” that he is a citizen of India, is being so held guilty on a fallacious argument. This also perhaps sums up the reasons behind the dismal deportation figures. Not only is neighbouring Bangladesh in denial mode, the Government of India is also doing little to take up the issues of deportation with that government.
Crucial to understanding this narrative is a look at the judgements in the cases of Sarbananda Sonowal (I) 5 and (II), 6 which have discussed Section 9 of the Act at some length. Though in Sarbananda Sonowal (I), the discussion was more on the purport and vires of the Illegal Migrants (Determination By Tribunals) Act, 1983, which had, by then eclipsed the Foreigners Act, 1946. In that context section 9 of the 1946 Act was found to be close to the object of determination and detection of foreigners (under the IMDT ACT, 1983), However, the entire scheme of the 1946 Act was not thoroughly examined.
Analysis of the concept of burden of proof in leading democracies in the case of Sarbananda Sonowal (I) was confined to section 291 of the Immigration and Nationality Act of USA, which talks about the burden on the person seeking admission in the USA. Similarly, the Immigration and Refugee Protection Act, 2001 of Canada, Immigration Act, 1971 of United Kingdom were also discussed in context of entry into those countries.
However, the burden of establishing alienage being on the state under section 240 of the Immigration and Nationality Act of USA, was not at all discussed. The discussions were more centered on the difficulties that the state would face to prove alienage, without any discussion on the ground realities which expose the obstacles a citizen may face to prove his status, lineage and legacy and also the concept of reverse burden of proof, which cannot be invoked to shift the burden of disproving the suspicions in someone’s mind rather than materials indicating alienage or facts from which such inference can be made.
Various case laws discussed therein to justify the reverse burden of proof would also show that the burden in those cases was cast on the accused based on certain (specific) happenings which lead to inference of certain unlawful acts being committed.
In Sarbananda Sonowal (II), the Hon’ble Apex court though made a distinction between the “satisfaction of having prima facie case”, with “establishment of prima facie case” by establishing the basic facts. The “satisfaction of having prima facie case” has not been held to be contrary to section 9, thereby indicating that the satisfaction of having prima facie case has not been dispensed with. Similarly, the Hon’ble Gauhati High Court in the case of Moslem Mandal 7 has not dispensed with the requirement of any application of mind to have some amount of satisfaction that the person to be tried is a foreigner and that such allegation/charge /ground to proceed can be without any materials to suggest alienage. However, in none of the above cases the leanings of law on the retention of domicile of origin and whether nationality/citizenship of a person can be a matter of presumption were considered.
Shockingly, in many of the proceedings before the Foreigner Tribunals, what is being seen is that those who “cannot prove” their citizenship to the satisfaction of the tribunals are being unilaterally declared as Bangladeshis or of Bangladeshi origin having come after 1.1.1966 or 25.3.1971 without an iota of evidence that the person is/was a citizen or domicile of the specified territory (East Pakistan or Bangladesh) and that the person has changed his domicile of origin or any surrounding facts showing any linkage of these persons to the specified territory on the basis of which such a presumption of alienage can be drawn.
Thus, the basic questions of fact as to whether, the proceedee has come from Bangladesh/specified territory and whether after 1966 or 1971, in these cases are being unilaterally decided based on surmises and conjectures, rather than proof.
Such findings can only be inherently faulty geared not to any legitimate and lawful process but caught up in the political rhetoric of “getting at infiltrators.” The learned tribunals have been known to discard and disbelieve documents, on the slightest of discrepancies. Worse, even oral evidence of the proceedee(s) are being also discarded and disbelieved on ground of the slightest of discrepancies in the narration of decade-old events.
In Sirajul Hoque -versus- The State of Assam 8 the Hon’ble apex court has set aside a judgment of a Tribunal in which the proceedee was declared to be foreigner because of some discrepancies in the spelling of the name of great grandfather of the proceedee in some documents.
With the impending finalisation of the National Register of Citizens (NRC)—aimed at determining who are citizens of India — on the basis of documents, even though the Citizenship Act in itself does not envisage any such basis for determination of citizenship; and the move to form hundreds of tribunals to look into the issue of the citizenship of millions of Indians who may be left out, the stakes are very high. Not only will the credibility of the state machinery be tested, with apparent fault lines in the process, but what will also be at stake is the life of millions. Already living on the edge; in a state of trauma, and in a permanent state of flux.
High time, therefore, that the entire base concept of the determination of foreigners and the purport of Section 9 of the Foreigners Act, 1946 is re-looked at. The present dispensation appears to be heading towards the creation of mass statelessness in violation of Article 5 (iii) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and other norms in international law. What is crucial to remember is that not all those who have “failed to prove their citizenship” are either all Bangladeshis or infiltrators. They are Indians, like millions of others who have no documents to back their existence.
(The author is a practicing advocate in the Guwahati High Court)
- AIR 1966 (SC) 160: Kedar Pandey-V-Narain Bikram Sah
- 1998 (7) SCC 337: Suresh Budharmal Kalani -V- State of Maharashtra
- 1979 (3) SCC 316: State (Delhi Administration)-V-Gulzarilal Tandon
4 2006 (7) SCC 188: Central Bureau of Investigation-V-Ravi Shankar Srivastava
- 2007(1)SCC 174: Sarbananda Sonowal (I) -V-Union of India
- 2005 (5) SCC 665: Sarbananda Sonowal (II) -V-Union of India
- 2013(1) GLT, 809: The State of Assam -v-Moslem Mondal
- Criminal Appeal No 267/2019 (Arising out of SLP (Crl.) No 4500/2018)