Column | Supreme Court's Fair Verdict: SC Protects Individuals Declared Foreigners In Assam

On July 13, 2026, in Sabitri Dey v. Union of India, the Supreme Court set aside 28 judgements of the Gauhati High Court in a single stroke. Each concerned a person declared to be a foreigner. In each, the declaration had been made ex parte, i.e., in the absence of the person concerned. A bench of Justices Vikram Nath and Sandeep Mehta held that these opinions could not stand, and sent the matters back to the foreigners tribunals to be decided afresh within six months. Its achievement is to strike down a practice that had hardened into routine in Assam: the treatment of a person’s silence as proof of their foreignness.

To see why this matters, let us begin with the provision at the centre of it all. Section 9 of the Foreigners Act 1946 does something the law rarely does: it reverses the burden of proof. Ordinarily, the person who alleges a fact must prove it. Here, once a person is suspected of being a foreigner, the onus falls on them to prove that they are not. It is an extraordinary burden, and the tribunals of Assam had come to treat it as something more extraordinary still: a burden that, if the accused failed to appear, discharged itself by default. The reference was made, the person did not come, and the declaration followed. The court has now held that this is improper. A reversed burden still operates according to a process, and that process must be fair.

The Burden and the Process

Section 9 simply tells us who must prove what. It says nothing about what the tribunal must do. That question is answered by the Foreigners (Tribunals) Order 1964, which requires that a person be served with the “main grounds” of the allegation against them, be given a real chance to reply, and, crucially, that the tribunal record a reasoned opinion containing a concise statement of facts and its conclusion. These duties do not disappear when the accused stays away. As the court puts it, the burden “operates within a legal process; it does not replace the legal process itself.”

The court had said as much before, in Md. Rahim Ali @ Abdur Rahim v. State of Assam in 2024, where it held that a “main ground” cannot be reduced to a bare suspicion that a person is a foreigner. It must disclose the essential basis of the allegation, so that the accused is not left to disprove a case they have never been shown. Sabitri Dey takes that principle and gives it teeth across an entire batch of cases. Even in an ex parte proceeding, the tribunal remains a quasi-judicial body. It must satisfy itself that notice was properly served, examine whether the main grounds were disclosed, weigh the material the state has actually produced, ask whether that material can support the conclusion that the person is a foreigner, and finally, it must give reasons. Non-appearance costs the accused the chance to lead evidence, but does not, by itself, convert the state’s allegation into proof. An empty chair is not a confession.

A Protection that does Not Ask for a Passport

The judgement’s foundation is the constitutional guarantee of fairness. The tribunals had operated as though a person whose citizenship was in doubt stood outside the Constitution’s protection. The court points to the text to show why that is wrong. Article 14 guarantees equality before the law to “any person”. Article 21 says that “no person” shall be deprived of life or liberty except by fair procedure. Neither says “citizen”. The protection of fair procedure is not a reward for proven citizenship. It is owed to everyone within the territory, including the person whose status is precisely what is being decided.

This is not a new doctrine. The court draws a straight line from Maneka Gandhi, which held that a procedure must be “fair, just and reasonable” and not “fanciful, oppressive or arbitrary”. But its application here is bracing. A determination that can end in detention, deportation, the splitting of a family, or statelessness is about as grave as civil consequences get. The graver the consequence, the more exacting the procedure must be. A proceeding that ends in such a declaration, the court says, cannot be sustained if it is “mechanical, one-sided, or devoid of application of mind”. This sentence is the heart of the ruling, and it deserves to travel far beyond Assam.

Where the Line is Drawn

What makes the judgement persuasive rather than merely generous is its refusal to overcorrect. The court is careful about what it has not done. It has not examined anyone’s claim to citizenship. Neither has it held that a tribunal may never proceed in a person’s absence. Where notice is genuinely served and the accused simply stays away, the tribunal may go on. It sorts the 28 cases into three groups: those who never appeared, those where the high court tried to appraise the evidence itself, and those who appeared and then defaulted, and treats them differently. For those who defaulted after entering the fray, the remand comes with a warning: it is one final opportunity, not an endorsement of their conduct and adjournment-seeking will not be indulged.

The state’s interest is also named plainly. The court accepts that the state has a legitimate and compelling interest in ensuring that those not entitled to citizenship do not acquire it by false claims or by gaming procedural delay. The reversed burden of Section 9 survives the judgement intact, and all that the court refuses to accept is that this interest can be served by shortcuts. A fair process is not to be seen as a concession to the accused, but the only thing that makes the eventual finding, whichever way it goes, worth anything.

The Clock and the Caution

If there is a limit to celebrate cautiously, it is that Sabitri Dey is a remand, not a redesign. The same tribunals, working under the same pressures that produced mechanical orders in the first place, will now hear these cases again. The six-month timeline is humane in intent, but a clock can cut both ways for a poor litigant assembling decades-old documents of ancestry and residence. The ruling corrects past errors case by case, but it does not rebuild the forum that made them. That larger repair, better-trained tribunals, a meaningful review of the standard and burden of proof of citizenship, is the work of the state and, eventually, the legislature.

But it would be ungenerous to ask a single judgement to do all of that. What Sabitri Dey does, it does very well. It reminds a statutory forum that had forgotten it that the reversal of a burden in the Act does not give the license to the forum to abolish the hearing. It restores to the person in the dock the elementary dignity of being adjudicated rather than processed, even if the person may, in the end, lose. For years, in these tribunals, mere absence was allowed to speak for guilt. The Supreme Court has now said, in as many words, that it cannot. This is a welcome development.

(Views expressed are personal)

Aditya Prasanna Bhattacharya is with the Vidhi Centre for Legal Policy

(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)