In a landmark judgment last week, the Supreme Court declared Assam resident Rahim Ali an Indian citizen, ending his 12-year ordeal that began when a Foreigners’ Tribunal in the state ruled him a foreigner. However, The Indian Express has now discovered that Ali died over two-and-a-half years before the verdict, as a “foreigner” and “illegal immigrant from Bangladesh.”
Ali, a resident of Kashimpur village in Nalbari, died on December 28, 2021. He was 58. Kaushik Choudhary, who represented Ali pro bono, wasn’t aware of his death. Ali’s son said that the family didn’t speak to any lawyer after his death, the report said.
Describing it as a “grave miscarriage of justice,” the top court criticised the citizenship proceedings against Ali that began 20 years ago. The court stated that Section 9 of the Foreigners Act does not empower authorities to arbitrarily target individuals and accuse them of being foreigners without substantial evidence.
In remarks that could impact similar cases in Assam’s Foreigners’ Tribunals, a Supreme Court Bench of Justice Vikram Nath and Justice Ahsanuddin Amanullah questioned the basis for the initial questioning of Ali’s citizenship in 2004.
In July of that year, a sub-inspector from Nalbari police station visited Ali’s home, informed him that his citizenship was in doubt, and asked for documents proving his Indian nationality. Ali, unable to provide the documents immediately, requested seven days’ time. When he failed to produce the documents, the case was referred to a Foreigners’ Tribunal in 2006.
Citing health issues, Ali failed to appear in court, leading the tribunal to pass an ex-parte order declaring he had illegally migrated to Assam from Bangladesh after March 25, 1971, the cut-off date for citizenship in Assam. The tribunal concluded that Ali “had failed to discharge his burden” under Section 9 of the Foreigners Act and prove his Indian citizenship.
The tribunal referred to Section 9 of the Foreigners Act, which places the burden of proof on individuals when their citizenship is questioned. Reviewing the proceedings from two decades ago, the Supreme Court highlighted Section 3 of the 1964 Foreigners (Tribunals) Order, mandating that the tribunal must provide the accused with the grounds for the allegations and allow them a fair opportunity to present their case and provide evidence in their defense.
In Rahim Ali’s case, the sub-inspector informed the tribunal that he had acted upon instructions from the then Superintendent of Police, who alleged Ali hailed from Bangladesh’s Mymensingh district and had migrated post-March 25, 1971.
The court questioned the justification for these directives: “The pleadings and the record are silent as to what was the basis of the SP’s direction. What materials or information had come to his knowledge or possession that warranted his direction? Obviously, the State cannot proceed in such a manner. Neither can we as a court countenance such approach,” states the judgement.
The court’s observations are significant, especially considering the widespread use of such methods to initiate citizenship proceedings in Assam, a region long plagued by tensions over issues of “illegal immigration” and citizenship.
Rahim Ali faced another hearing before a Foreigners Tribunal in 2017, following a directive from the Supreme Court to adjudicate his case based on its merits. Once again, the tribunal ruled him a foreigner, citing discrepancies in spellings and dates in some of the documents he submitted.
The Supreme Court’s judgement criticises this decision, deeming the discrepancies “minor” and noting that Rahim Ali provided evidence demonstrating that his parents were residents of India well before 1966.
“Variation in name spelling is not a foreign phenomenon in preparation of the Electoral Roll… Moreover, in our country, sometimes a title is prefixed or suffixed to a name such that the same person may be known also by one or two aliases. The Tribunal seems to have been totally oblivious to all this,” according to the judgement.
