The Supreme Court’s ruling on the Rahim Ali case (2024) is refreshing to anyone aware of the problematic manner in which the Foreigner Tribunals (FTs) have functioned in Assam for almost two decades.
The FTs, as Advocate Aman Wadud puts it, generally function on the presumption of non-citizenship i.e. the moment one is accused as an illegal migrant, they are presumed to be a non-citizen. Therefore, the fact that the court in the Rahim Ali case placed trust in the appellant and further questioned the main procedural grounds on which the authorities accused Ali is what makes the judgement a moment of respite.
But has the judgement pronounced anything that has not been said before?
The ratio decidendi (the rationale for the decision) given by the court in this judgement falls in line with other judicial precedents that demand a reverse burden of proof, something that the Ali judgement makes very clear by citing multiple cases like Mukesh Singh vs. State (Narcotic Branch of Delhi), (2020) and Noor Aga vs. State of Punjab, (2008). More importantly, any doubts regarding the procedure of accusing an individual of being an illegal immigrant were definitively dealt with by the full bench of the Gauhati high court (GHC) in The State of Assam and Anr vs. Moslem Mondal and Ors (2013) case, where the court stated:
The primary onus in relation to the existence of the grounds to the satisfaction of the Tribunal would be on the State, meaning thereby that the grounds on which a proceedee is suspected to be a foreigner must be reasonable and relevant to the issue of foreigner.
Here, the Moslem Mondal (2013) judgement is also noteworthy as the GHC states:
The standard of proof in a proceeding before the Tribunal under the 1946 Act is held to be the same as that in a civil suit i.e. preponderance of probabilities.
This was further clarified by the GHC in the Idrish Ali vs. Union of India (2020) and Haider Ali vs. Union of India (2021). So, minor discrepancies in name and age, etc., cannot be held as grounds for classifying any individual as an illegal immigrant. Both points were reiterated in the Supreme Court judgement.
Therefore, the Rahim Ali judgement isn’t one of its kind and most of the principles mentioned in the judgement have already been clarified in the Moslem Mondal (2013) judgement, which should have been binding on the tribunals, as well as, for other smaller benches of the GHC, as it was pronounced by a full bench. The fact remains that while the Supreme Court’s judgement in the Rahim Ali case is a welcome departure from the norm, it brings to light a situation where the Tribunals and the GHC often ignore safeguards provided to individuals like Rahim Ali.
Also read: Union to SC: ‘No Accurate Data on Illegal Immigration, Rs 122 Cr Spent on 100 Foreigners Tribunals’
It can be argued, that the inciting statements made by the Supreme Court in the Sarbananda Sonowal vs. Union of India (2005) case have allowed for this dire situation. This particular judgement not only declared the Immigrants (Determination by Tribunal) Act (1983) to be unconstitutional, but simultaneously, raised an alarm by classifying Assam as a region that was facing external aggression due to illegal immigration from Bangladesh. This classification has been consistently used by the state to deny legal safeguards to individuals accused of being illegal immigrants. The judgement observed:
The influx of these illegal migrants is turning these districts into a Muslim majority region. It will then only be a matter of time when a demand for their merger with Bangladesh may be made.
This represents an unprecedented and tragic situation where the words of the Supreme Court can be confused, even inadvertently, with the musings of any random right-wing leader of our country.
Unsurprisingly, the discriminatory tropes propagated in the Sonowal judgement have been regurgitated by both the state and the courts in other important judgements, e.g. the Assam Sanmilita Mahasangha & Ors (2014) and more recently Kuddus Ali (2023). The most egregious example of this could be seen in the Amina Khatun judgement (2018) where the GHC held the principle of ‘Res Judicata’, i.e. the legal doctrine that bars any party in a civil lawsuit from suing again on the same claim or issue did not apply to the FTs. The court justified its decision by emphasising the Sonowal judgement while stating:
Detection of illegal migrants or foreigners is therefore of paramount importance having overriding national interest. All other public interest or public policy would have to give way to the overarching public policy of detection of illegal foreign nationals residing in the State of Assam.
While the Amina Khatun (2018) judgement was reversed in the Sital Mandal (2022) judgement given by the GHC in 2022, the fact remains that from 2005 to 2022 an individual could be accused of being a foreigner more than once, even if they were declared to be Indian once before. The unfortunate reality is that if one were to delve into old cases of citizenship determination in Assam, one would encounter thousands of cases where both the FTs and the GHC failed to provide basic procedural and constitutional safeguards to the people accused of being foreigners. Even more unfortunate is the fact that all these exclusionary judgements are rooted in a judicial pronouncement made by the Supreme Court.
Our intention here is not to downplay the significance of the Rahim Ali judgement, as we sincerely hope that this judgement is accepted as a critical judicial precedent for future writ appeals against adverse FT orders. However, we remain apprehensive about the future of citizenship in Assam.
We feel that the Rahim Ali judgement should be celebrated, but when viewed in the context of the long-drawn episodes of judicial obfuscation, double standards, if not violence, it’s just a speck in the ocean. Unfortunately, thousands of suspects and declared foreigners, who may not have the wherewithal to approach the highest court of the land, will continue to live in fear of being hoarded in the detention camps. Therefore, what needs to be recognised is that we are not dealing with one exceptional case of Rahim Ali, rather; one may find thousands of individuals like Rahim Ali, who may never get the dignity of being recognised as citizens during their lifetime or death.
Samik Roy Chowdhury and Gorky Chakraborty are with the Institute of Development Studies Kolkata.
