Supreme Court sets aside ex parte foreigner declarations, remits Assam cases to Tribunals
A bench of Justices Vikram Nath and Sandeep Mehta held that ex parte Foreigners Tribunal opinions cannot stand without reasoned adjudication, remitting the batch for fresh decision.
The Supreme Court has set aside a batch of orders declaring persons to be foreigners in Assam, holding that a statutory declaration carrying such grave consequences cannot rest on a mechanical, ex parte finding. In Sabitri Dey @ Swasthi Dey & Ors. v. Union of India & Ors., decided on 13 July 2026, a division bench of Justice Vikram Nath and Justice Sandeep Mehta examined proceedings before the Foreigners Tribunals in Assam and the erstwhile Illegal Migrants (Determination) Tribunals, where opinions had been affirmed by the High Court at Guwahati.
The common grievance was that the opinions were rendered in proceedings that were either ex parte or had become effectively ex parte, without a full opportunity to contest the reference. The Court held that even in an absent party’s case, the Tribunal must undertake a genuine adjudication, and it remitted all the matters for fresh consideration.
How the batch reached the Court
The appeals arose from opinions of Foreigners Tribunals and the earlier Illegal Migrants (Determination) Tribunals in Assam, each affirmed by the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh at Guwahati. Leave was granted in several special leave petitions and diary matters, and delay was condoned where applicable.
The Court found the cases were not identical on facts but could be grouped into three categories. The first covered appellants who never appeared before the Tribunal despite recorded service of notice. The second covered cases where the High Court itself examined the documents while declining interference. The third covered appellants who appeared or took some step at an earlier stage but then defaulted, so the proceeding became effectively ex parte.
What the Court held on ex parte adjudication
The Court framed the issue narrowly: whether an opinion declaring a person a foreigner can be sustained where the proceeding was ex parte or had become effectively ex parte, without a meaningful examination of service, opportunity, the material forming the basis of the reference, and the State’s evidence.
Section 9 of the Foreigners Act, 1946 places the burden on the proceedee to prove that he or she is not a foreigner. But the Court held that this burden operates within a legal process and does not replace it. Section 9 “does not authorise a mechanical declaration.” Absence of the proceedee cannot be treated as a substitute for examination of the material on record.
Reading Section 9 with Paragraph 3 of the Foreigners (Tribunals) Order, 1964, the Court stressed that the proceedee must be served with the “main grounds” on which he or she is alleged to be a foreigner. The Tribunal remains a quasi-judicial forum: it must verify service, examine whether the main grounds were disclosed, consider the State’s evidence, and record reasons. Paragraph 3(16) requires the final order to contain a concise statement of facts and the conclusion.
The reasoning on fairness and constitutional protection
The Court relied on Md. Rahim Ali @ Abdur Rahim v. State of Assam, 2024 INSC 511, which distinguished a bare allegation from the “main grounds” under Paragraph 3(1) and held that Section 9 does not exclude natural justice. A declaration by a Foreigners Tribunal was described as no routine civil consequence, capable of leading to detention, deportation, separation from family, and even statelessness.
The bench located these safeguards in Articles 14 and 21 of the Constitution, noting both provisions use “any person” and “no person” and are not confined to citizens. It cited Louis De Raedt v. Union of India and National Human Rights Commission v. State of Arunachal Pradesh for the protection of foreigners under Article 21, and Maneka Gandhi v. Union of India for the principle that procedure must be fair, just and reasonable.
On natural justice, the Court invoked Cooper v. Wandsworth Board of Works, A.K. Kraipak v. Union of India and Canara Bank v. Debasis Das, holding that notice must reasonably apprise the person of the case to be met and that the opportunity under Paragraph 3 must be effective, not merely formal.
Application to the three categories
For the first category, where appellants never appeared, the Court held the Tribunal was not bound to keep proceedings pending indefinitely under Paragraph 3(7), but non-appearance does not convert absence into proof. The Tribunal must still apply its mind to the main grounds, proof of service and the State’s evidence. These matters were remitted, with one opportunity subject to strict conditions.
For the second category, the Court held that a first-time factual appreciation of documents in writ proceedings cannot substitute for the statutory adjudication before the Tribunal, which is the primary fact-finding forum. These matters too were remitted.
For the third category, the Court said appellants who appeared and then defaulted cannot fault the Tribunal for declining repeated adjournments, and the statutory scheme expects diligence. Even so, the Tribunal’s obligation under Paragraphs 3(15) and 3(16) continues. The remand was granted as one final opportunity, not as approval of the appellants’ default.
Order
The Court clarified it had not examined the merits of any citizenship claim or the genuineness of any document. It set aside the impugned High Court judgments and the corresponding opinions of the Foreigners Tribunals and the erstwhile Illegal Migrants (Determination) Tribunals, and remitted the matters for fresh adjudication uninfluenced by earlier observations.
The appellants were directed to appear before the concerned Tribunals within four weeks and to file written statements, documents and affidavits of evidence within the time fixed, which shall not be extended except for sufficient cause recorded in writing. The State and reference authority may produce evidence. If an appellant fails to appear or cooperate, the Tribunal may proceed in accordance with law.
Until fresh opinions are rendered, no coercive steps are to be taken against the appellants on the basis of the set-aside opinions, subject to their appearance and cooperation. The Tribunals were directed to endeavour to decide the references preferably within six months of first appearance. The appeals were allowed in these terms.