Column | SC's Assam Verdict: When the Outcome is Statelessness

In 1997, a tribunal in Diphu, Karbi Anglong, declared Sabitri Dey and her family foreigners. Nobody from the family appeared before it. The Gauhati High Court affirmed the finding in 2020, adding that Sabitri Dey had come to the court too late. On July 13, 2026, the Supreme Court set aside both orders in Sabitri Dey @ Swasthi Dey and Others v. Union of India and Others. Her case was one among 28, all of them decided by Foreigners Tribunals (or the Illegal Migrants [Determination] Tribunals) in Assam without the person concerned actually being heard.

The Supreme Court held that even in an ex parte proceeding, the tribunal, being a quasi-judicial forum has a duty to check that notice was properly served, the grounds of accusation were disclosed and the state’s material can bear the conclusion drawn from it. All matters were sent back for fresh decision. In essence, the court held that “an ex parte proceeding may dispense with the participation of the absent party, but it does not dispense with objective consideration and meaningful adjudication by the Tribunal.”

The court identified a constitutional wrong and then chose a remedy that leaves the deepest features of the problem untouched. It fixed the method of deciding without deciding anything, it confined its relief to the litigants before it and it accepted the statutory burden of proof on the individual based upon a rationale that it never tested. The gap between the principle announced and the relief granted is where the faultline lies.

Start with what the court got right. It said that Article 14 protects “any person” and Article 21 protects “no person”, and neither is limited to citizens. So a person facing a foreigner reference is entitled to fair procedure even if she ultimately fails to prove she is Indian. The court drew on Louis De Raedt v. Union of India (1991) 3 SCC 554 and on NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742 to say that constitutional protection operates while status may still be under inquiry.

The tribunal proceedings may cause detention, deportation, separation from family and community, and even the possibility of statelessness. The court therefore emphasised that the process by which such a declaration is made must satisfy the minimum requirements of fairness and must rest upon material capable of supporting the conclusion. The court reiterated that under Article 21, procedure must be “fair, just and reasonable” and cannot be “fanciful, oppressive or arbitrary” (Maneka Gandhi v. Union of India [1978] 1 SCC 248). This proposition denies the state the convenience of treating the accused as already outside the Constitution and protects fair process.

The court, however, expressly declined to examine whether any of the litigants before it are, in fact, Indian. Every file goes back to the same tribunal that got it wrong. Consider what that means for Dey and others like her. She was declared a foreigner in 1997. She will now argue her citizenship for the first time in 2026 or 2027, 30 years on. Witnesses who could have spoken to her parentage are dead. Village records have decayed. The very documents the law expects her to produce, old electoral rolls and land records, are the ones least likely to survive three decades. The court gave her a fair process at the precise moment when a fair process is hardest to use. Is this essentially fairness in form over fairness in substance?

Compare Md. Rahim Ali, decided in 2024, which this judgement leans on. There, the court did not stop at correcting method. It examined the evidence and declared the man an Indian citizen. Sabitri Dey borrows Rahim Ali’s principles and declines its remedy.

Section 9 of the Foreigners Act 1946 puts the onus on the accused to prove she is not a foreigner. The court did address this fairly. It reasoned that facts of birth, parentage and lineage lie within a person’s own special knowledge, and that the burden and fair procedure are complementary rather than opposed. But the rationale is left untested against the facts of these very cases. A woman from rural Assam may know exactly who her grandfather was and have no paper that says so. The records that would prove it sit in state offices, in registries that flood, in rolls that were never digitised. A burden justified by knowledge is being discharged in a currency of documents. The court noticed the difficulty in passing, observing that such a person cannot be expected to discharge the burden unless the grounds are disclosed.

As for moral framing, the court describes the remand as “one final opportunity”, subject to “strict conditions”, and says expressly that it must not be read as approval of the appellants’ conduct in defaulting. The language of indulgence is unmistakable. Yet, the court has just held that the original orders were legally deficient because the tribunals failed in their own duty. If the first proceeding was defective for reasons attributable to the forum, the second should not be framed as a favour. The court, perhaps inadvertently, relocates the fault from the institution to the individual.

The most consequential point to note is that the relief stops at 28. The judgement binds only these appellants. Assam has produced tens of thousands of foreigner declarations and a large share of them is ex parte. The court gave no direction that its reasoning be circulated to tribunals, no mechanism for identifying similarly placed people, no instruction to the Gauhati High Court. Rahim Ali at least asked for wide circulation. The principle here is stated in constitutional terms and delivered in retail quantities. Whether you benefit depends on whether you found a lawyer who could take you to Delhi.

Against all this, there is a serious defence underlying the court’s hesitation to go all the way. The court explained that Paragraph 3 of the Foreigners (Tribunals) Order 1964 makes the tribunal the forum for factual inquiry and that a writ court should not become the first place where documents are appreciated. That is not evasion. It is fidelity to the statutory design. More importantly, these records are empty precisely because they were ex parte. The state never had to lead evidence and no document was ever tested.

Rahim Ali could be decided outright because it came up on a contested record. Deciding citizenship here on an untested file would mean conferring status without scrutiny, which is the mirror image of the wrong being corrected. The court also acknowledged, rightly, that the state has a legitimate and compelling interest in preventing citizenship from being secured by false claims or procedural delay. It also ordered that no coercive steps be taken until fresh opinions are rendered and asked tribunals to conclude within six months.

These answers, however, do not fully persuade. The six-month direction is precatory, an endeavour and a preference. Precatory timelines have a poor track record. The protection against coercive action is welcome but conditional on cooperation and it addresses detention rather than the civic limbo of being off the electoral roll. The institutional-competence argument explains why the court could not declare these people citizens. But it does not explain why relief was confined to the 28, why the reasoning was not directed to be applied generally, or why the language of last chances was used at all. Those choices were not compelled by the statutory scheme.

One detail should discourage anyone from reading this as a partisan matter. The 28 appellants include Sabitri Dey, Paritosh Chanda and Gauranga Debnath alongside Kokila Begum and Azizul Hoque. A machinery that decides in absentia does not check community or religion before it errs. The question is not who the system is aimed at. It is whether any of us would accept being declared a stranger to our country by a proceeding we never attended.

(Views expressed are personal)

Saurabh Gupta is an advocate practising in the Punjab and Haryana High Court

(This story appeared in Outlook magazine’s August 17 issue, 'Parliament on Street', which takes an incisive look at the student protests against recurring examination paper leaks, the zing of Gen-Z politics and the Jantar Mantar protest at Delhi which triggered a strong response all across India, sending out a clear reminder that while governments are formed in Parliament, democracies remain alive on the streets)