A) ABSTRACT / HEADNOTE

The Supreme Court in Rofiqul Hoque v. Union of India & Ors., Criminal Appeal No. 2686 of 2025, addressed the interplay between inclusion of a person’s name in the draft NRC and a prior declaration of foreigner status under the Foreigners Act, 1946. The appellant, declared a foreigner by the Foreigners Tribunal, argued that his subsequent inclusion in the draft NRC validated his Indian citizenship. The Court rejected this contention, reiterating that under Section 9 of the Foreigners Act, 1946, the burden rests upon the proceedee to prove citizenship. The appellant’s documentary evidence—primarily voter lists and a school leaving certificate—was held unreliable due to inconsistencies, lack of authentication, and contradictions regarding residence and familial lineage. The Court emphasized that once a Foreigners Tribunal has declared a person to be a foreigner, such declaration cannot be nullified by administrative inclusion in the NRC, citing Abdul Kuddus v. Union of India (2019). The Court also reaffirmed principles from Sarbananda Sonowal v. Union of India (2005) regarding the mandatory burden of proof. Ultimately, the appeal was dismissed, solidifying the doctrine that quasi-judicial declarations of foreigner status prevail over administrative compilations like the NRC. This judgment underscores the binding nature of Foreigners Tribunal declarations, the evidentiary rigour required of alleged citizens, and the supremacy of judicial determinations over administrative inclusions.

Keywords: Foreigners Act, NRC, Burden of Proof, Illegal Migrants, Citizenship Disputes, Assam, Quasi-Judicial Tribunal, Administrative Records.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The judgment emanates from Assam’s long-standing legal and political crisis concerning illegal migration. The Foreigners Act, 1946 places the evidentiary burden upon individuals suspected of being foreigners to establish their citizenship. Assam, being a border state, has faced persistent issues regarding identification of citizens and illegal migrants, particularly in the aftermath of the 1971 Bangladesh Liberation War, which led to massive influx of refugees. The Assam Accord, 1985, crystallized 25 March 1971 as the cut-off date for determining citizenship status. The establishment of the Foreigners Tribunal system allowed for adjudication of individual cases.

In this backdrop, Rofiqul Hoque was alleged to have illegally entered Assam after the cut-off date. Despite producing voter lists and a school leaving certificate to establish ancestry and residence, the Foreigners Tribunal declared him a foreigner in 2017. The Gauhati High Court upheld this decision in 2017, citing inconsistencies in evidence and failure to discharge the statutory burden. Meanwhile, the NRC process under the 2003 Rules introduced administrative inclusion mechanisms. The appellant’s name appeared in the draft NRC of 2018, prompting him to argue before the Supreme Court that such inclusion invalidated the prior declaration.

The Court was confronted with two pivotal questions: (i) whether the Tribunal and High Court’s findings suffered infirmity warranting interference under Article 136; and (ii) whether inclusion in the draft NRC annulled the declaration of foreigner status. By interpreting statutory provisions and relying on precedents such as Abdul Kuddus (2019) and Sarbananda Sonowal (2005), the Court reinforced the primacy of judicial findings over administrative actions in determining citizenship disputes.

D) FACTS OF THE CASE

The Superintendent of Police (Border), Sivasagar, initiated a reference before the Foreigners Tribunal, Jorhat, Assam, alleging that the appellant was an illegal migrant residing in Assam post-25 March 1971. In response, the appellant filed a written statement in 2016, claiming Indian citizenship through ancestry. He asserted lineage from his grandfather Joynal Abdin Seikh and grandmother Moriyom Bibi, whose names appeared in the 1966 and 1970 electoral rolls of Gauripur constituency. His father, Majut Ali, also appeared in voter lists of subsequent years.

The appellant relied on six documents: a duplicate school leaving certificate (2014) showing his birth in 1996 and parentage; extracts of voter lists from 1966, 1970, 1993, 2010, and 2016. However, these documents raised doubts. The Tribunal noted discrepancies in voter records, particularly changes in residential villages between Daobhangi and Kekurchar, and unexplained variations in ages of individuals across electoral rolls. Furthermore, the school leaving certificate was issued a decade after schooling ended, lacked authentication from the issuing headmaster, and was a duplicate without proof of loss of the original.

The Tribunal concluded that the appellant failed to prove his Indian citizenship, as required under Section 9 of the Foreigners Act, 1946. The Gauhati High Court, on writ petition, upheld this finding, emphasizing contradictions in documents, absence of parental and maternal records in electoral rolls, and unexplained discrepancies in residence and ages. The High Court dismissed the writ in November 2017.

Post-detention, the appellant approached the Supreme Court. He claimed reliance on two subsequent developments: (i) issuance of a PAN card in 2017; and (ii) inclusion of his name in the draft NRC in 2018. The appellant argued that these constituted recognition of his Indian citizenship, invalidating the Tribunal’s declaration.

E) LEGAL ISSUES RAISED

i. Whether the findings of the Foreigners Tribunal and Gauhati High Court declaring the appellant a foreigner suffer from legal infirmities warranting interference under Article 136 of the Constitution?

ii. Whether inclusion of the appellant’s name in the 2018 draft NRC renders invalid the declaration of foreigner status affirmed by the Tribunal and High Court?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for the appellant contended that inclusion of his name in the draft NRC amounted to state recognition of his citizenship, thereby nullifying prior quasi-judicial findings. They argued that voter list discrepancies should not defeat citizenship claims, as such records are beyond the control of individuals. Change of residence between villages should not, by itself, raise doubts about nationality, given the constitutional freedom of movement. They urged the Court to adopt a liberal evidentiary approach, emphasizing that minor clerical errors in age or residence ought not to disqualify genuine citizens. They highlighted his PAN card issuance and administrative recognition through NRC inclusion as subsequent official acknowledgments of citizenship.

G) RESPONDENT’S ARGUMENTS

The respondents, represented by the Solicitor General, submitted that quasi-judicial declarations of foreigner status cannot be undone by administrative inclusion in NRC records. They stressed that Section 9 of the Foreigners Act, 1946 clearly imposes the burden of proof on the proceedee, which the appellant failed to discharge through reliable documents. They argued that inconsistencies in voter lists regarding residence, absence of maternal entries, and variations in age rendered the appellant’s narrative untrustworthy. The school leaving certificate was unreliable, being a duplicate issued years later without authentication. Relying on Abdul Kuddus (2019), they submitted that persons declared foreigners cannot lawfully be included in the NRC, and even if erroneously included, such inclusion carries no legal weight.

H) RELATED LEGAL PROVISIONS

i. Section 9, Foreigners Act, 1946 – Burden of proof on the proceedee to establish citizenship.
ii. Rule 4A(4), Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 – NRC preparation for Assam, excluding persons declared foreigners.
iii. Article 136, Constitution of India – Supreme Court’s discretionary appellate jurisdiction.
iv. Assam Accord, 1985 – Cut-off date of 25 March 1971 for determining citizenship.

I) JUDGEMENT

The Court dismissed the appeal. It held that the Tribunal and High Court had carefully examined evidence and found it unreliable, thus their findings did not suffer from perversity or manifest error justifying interference under Article 136. The Court reaffirmed that under Section 9, Foreigners Act, 1946, the appellant bore the burden of proving his Indian citizenship but failed to discharge it satisfactorily.

On the second issue, the Court categorically ruled that inclusion in the NRC cannot override or annul a declaration of foreigner status. Citing Abdul Kuddus (2019), it clarified that once a person is declared a foreigner by a Tribunal, he falls into a distinct category excluded from NRC eligibility. The NRC process, being administrative, cannot nullify judicial determinations. Thus, the appellant’s inclusion in the draft NRC was irrelevant.

The Court discharged the interim release order and directed that the appellant continue to be treated as a foreigner.

a. RATIO DECIDENDI

The ratio of this case is that judicial declarations by Foreigners Tribunals under the Foreigners Act, 1946, take precedence over administrative processes like NRC compilations. A person declared a foreigner cannot rely on NRC inclusion to claim citizenship. Furthermore, the burden under Section 9 of the Foreigners Act, 1946 is stringent and must be discharged through consistent, authenticated, and cogent documentary evidence. In this case, contradictions in voter records, doubtful school certificate, and absence of maternal records invalidated the appellant’s claim. The Supreme Court held that appellate review under Article 136 does not extend to re-appreciating evidence unless perversity or manifest illegality is shown.

b. OBITER DICTA

The Court observed that administrative processes like the NRC must operate within statutory frameworks and cannot dilute or override judicial pronouncements. The case highlights that electoral rolls and school records, though relevant, must withstand scrutiny for consistency and authenticity. It also implicitly stresses the need for citizens to preserve robust documentary evidence of ancestry, as discrepancies in public records are insufficient to establish nationality. The Court signaled that systemic errors in NRC inclusion cannot legitimise illegal migrants.

c. GUIDELINES

1. Declarations of foreigner status by Foreigners Tribunals are binding and cannot be undone by administrative NRC inclusion.

2. Burden of proof under Section 9, Foreigners Act rests strictly on the proceedee and must be discharged with authentic, consistent, and cogent documents.

3. Electoral rolls carry limited probative value unless corroborated with other reliable evidence.

4. School certificates and similar documents must be contemporaneous and duly authenticated to be admissible.

5. Inclusion in draft NRC is not conclusive proof of citizenship if a Tribunal has declared otherwise.

6. Supreme Court’s power under Article 136 is supervisory and will not interfere with concurrent factual findings unless perversity or manifest illegality is established.

J) CONCLUSION & COMMENTS

The decision reinforces the supremacy of judicial determinations in citizenship disputes. By denying NRC inclusion any curative effect, the Court has drawn a firm boundary between quasi-judicial declarations and administrative records. This judgment serves as a cautionary precedent for those relying solely on NRC entries to assert citizenship. It also underscores the evidentiary challenges faced by marginalized communities in Assam, where documentation is often scarce or inconsistent. However, the strict approach ensures consistency in applying Section 9 of the Foreigners Act and prevents misuse of NRC inclusion as a shield against adverse declarations. While the decision upholds statutory rigor, it also exposes the humanitarian tensions inherent in India’s citizenship adjudication framework, particularly in Assam, where historical migrations blur legal categories of nationality.

K) REFERENCES

Important Cases Referred
i. Abdul Kuddus v. Union of India, (2019) 6 SCC 604.
ii. Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.

Important Statutes Referred
i. Foreigners Act, 1946.
ii. Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
iii. Constitution of India, Art. 136.
iv. Assam Accord, 1985.