Rahim Ali: Restoring a Dead Man’s Citizenship

After fighting against the dispute over his nationality for two decades and two years after his death, a two-judge Bench of the Supreme Court comprising Justice Ahsanuddin Amanullah and Justice Vikram Nath ‘restored’ the citizenship of Rahim Ali on July 11 this year.

Twenty years is a long time. In Bharatiya Nyaya Sanhita, 2023, the punishment given to a convict in heinous offences, which include murder and gang rape, is twenty years.

To understand the process that led to the suspension of Ali’s citizenship, which in a constitutional democracy like India may be compared to a civil death, we need to go into the details, as like the devil, many acts of injustice lie in the details.

Why was Ali compelled to live in the perennial fear of detention for twenty years?

Brief facts

In 2004, a case was initiated by the superintendent of police (border), Nalbari doubting the citizenship status of Rahim Ali by alleging that he had illegally migrated from Bangladesh after March 25, 1971 into Assam, India.

Twenty years is a long time. In Bharatiya Nyaya Sanhita, 2023, the punishment given to a convict in heinous offences, which include murder and gang rape, is twenty years.

The case was registered in the Foreigners Tribunal, Nalbari in Assam. Subsequently, on receipt of notice given by the tribunal, Rahim Ali appeared on July 18, 2011 praying for time to file a written statement.

He sought additional time to file a written statement on subsequent dates, resulting eventually in the tribunal passing an ex parte Order on March 19, 2012 declaring Rahim Ali to be a foreigner.

This finding of the tribunal is primarily based on the statutory burden of proof under Section 9 of the Foreigners Act, 1946, which imposes the burden on the proceeded against to prove his citizenship.

When Rahim Ali challenged the Foreigners Tribunal Order declaring him a foreigner before the Gauhati High Court citing serious medical illness for non-appearance before the tribunal, the division Bench of the high court, on June 6, 2012, stayed the operation of the tribunal’s Order, and on August 5, 2015 directed the State counsel to verify the medical certificate issued by the hospital to the petitioner.

On the issue of verifying the medical prescription, a letter was issued by the superintendent of the hospital which stated that the hospital does not have records of the petitioner’s medical treatments and that the said medical certificate is a fake one.

On November 23, 2015, based on the fake medical prescription, the high court in its judgment concluded that the petitioner had resorted to falsehood which alone was enough to dismiss his claim to citizenship.

It further placed reliance on its full Bench judgment in State of Assam versus Moslem Mondal to hold that an ex parte Order is not to be interfered with nor can it be set aside lightly unless special or exceptional circumstances are shown to exist, and directed the superintendent of police (border), Nalbari to detain Rahim Ali until his deportation to Bangladesh and the deputy commissioner, Nalbari to ensure deletion of his name from the electoral rolls.

The case finally reached the doors of the Supreme Court in the year 2017. The court directed the tribunal to examine the documents filed by the petitioner and to submit a report based on them.

The tribunal reaffirmed its earlier finding declaring Rahim Ali to be a foreigner. This time the finding of the tribunal was based on the minor name discrepancies in the documents filed by the petitioner.

On November 23, 2015, based on the fake medical prescription, the high court in its judgment concluded that the petitioner had resorted to falsehood which alone was enough to dismiss his claim to citizenship.

The State argued that this was a case of illegal migration of a Bangladeshi national to India after the cut-off date of March 25, 1971 and had to be dealt with utmost caution, considering the adverse consequences of illegal migration on the whole country in general and Assam in particular.

Tracing the history of the case, the State submitted that the case was initiated based on the inquiry conducted by the officer and the failure of the petitioner to submit any documents at the time of inquiry.

Further, under Section 9 of the Foreigners Act, 1946, the onus is on the person proceeded against to prove his citizenship. Moreover, in the case at hand, the petitioner had relied on a fake medical prescription.

The judgment

The Supreme Court formulated a question that may sound rhetorical but is of paramount importance: “Does Section 9 of the Act (The Foreigners Act,1946) empower the executive to pick a person at random, knock at his/her/their door, tell him/her/they/them ‘we suspect you of being a foreigner’ and then rest easy?”

In answering the above question in a negative, it held, firstly, that even for initiating an inquiry, there has to be some material basis or information to suspect that the person is a foreigner and not an Indian.

Secondly, a mere allegation that someone is an illegal migrant is not enough to impose the Section 9 burden.

Thirdly, not giving a copy of the main grounds based on which the case has been referred or it is alleged that the person is a foreigner by the authority to the person proceeded against is violative of principles of natural justice.

The Supreme Court recognised the diversity in language which often renders the spelling of names in documents inconsistent.

The court categorised that for a person to be proceeded against, the material basis for such a case must: (i) prove the person is not an Indian national, and (ii) establish or identify his or her country of origin.

By the court’s reasoning, it is implicit that both the materials that disclose the above two pieces of information must be based on admissible evidence and shared with the person proceeded against.

The Section 9 burden only kicks in after the foundational facts have been established by the referring authority before the tribunal.

It further recognised the diversity in language which often renders the spelling of names in documents inconsistent.

In Rahim Ali’s case, the court held that the State miserably failed to provide the material basis for initiating the case against him, rendering the inception of the case itself a nullity, void and without merits.

A way ahead

The least Indian courts can do to honour the memory of Rahim Ali and to repent their sin is to ensure that none of its citizens dies a foreigner in their own country.

Firstly, it can be done by directing that the ratio of Rahim Ali be binding on the tribunal members and border police in Assam, failure of which would attract departmental enquiry and penal provisions.

This is something the court has not shied from doing in a criminal case in Md. Asfak Alam versus State of Jharkhand. In that case, the Supreme Court, to ensure that an accused is not arrested unnecessarily and a magistrate does not authorise detention casually and mechanically, directed that the non-compliance of procedure as laid down in Section 41 and 41A of the Criminal Procedure Code, 1973 will attract departmental action both for the police and judicial magistrates by the concerned high courts.

Secondly, it must direct State authorities to re-verify all the claims of disputed citizenship that are at various stages of appeal, and drop those which lack the ingredients as illustrated in Rahim Ali’s case.

Thirdly, a full Bench of the Gauhati High Court in State of Assam versus Moslem Mondal recognised the importance of the availability of certified copies of public documents in discharging the statutory burden imposed under Section 9 of the Foreigners Act, 1946.

The Gauhati High Court has linked the availability of the documents to the proceedee’s right to a fair trial. 

It linked the availability of the documents to the proceedee’s right to a fair trial. Only when the proceedee has the copies of the electoral rolls will he be available to discharge the burden effectively. The court must direct the State to make all the documents available in less time and free of cost to those against whom a case is registered in the Foreigners Act, 1946.

Fourthly, the courts must recognise the limitation of documentary evidence. Not all people have the privilege to possess old documents. The division Bench of the Gauhati High Court in Karim Ali versus The Union of India and Ors. held that it is not necessary to prove each fact through documentary evidence alone. It allowed oral evidence to discharge the burden.

However, undue importance is given to documentary evidence in a trial by the Foreigners Tribunal. The courts must now direct that the ratio in Karim Ali be binding on the tribunals while appreciating the evidence.

Only this would restore some sense of balance and will be a fine tribute to Rahim Ali whose very name means merciful.

Dipesh Kr. Agarwala is an advocate practising at the Gauhati High Court.