Citizenship Status Must Be Determined Through Fair Process

Source: Supreme Court 

Why in News? 

A Bench comprising Justice Vikram Nath and Justice Sandeep Mehta, in Sabitri Dey @ Swasthi Dey v. Union of India (2026), allowed 27 appeals and set aside Gauhati High Court judgments that had upheld Foreigners Tribunal declarations of the appellants as foreigners, holding that citizenship determination carries profound constitutional significance and must satisfy the requirements of procedural fairness. 

What was the Background of Sabitri Dey @ Swasthi Dey v. Union of India (2026) Case? 

• In the lead case, the Gauhati High Court had dismissed the challenge to an ex parte order of the Foreigners Tribunal declaring the petitioners to be foreigners. 
• The High Court noted that despite due service of notice, none of the proceedees had appeared before the Tribunal, and that the Tribunal's opinion was challenged only after nearly 23 years. 
• In the absence of any written statement, documents, or evidence from the proceedees, the High Court held that the Tribunal had no option but to affirm the reference. 
• The High Court acknowledged that proceedings under the Foreigners Act cannot be reduced to a mechanical exercise and that a proceedee must be given a fair opportunity to establish Indian citizenship, but held that such opportunity could not be enlarged into an endless exercise, noting that several opportunities granted had gone unavailed. 
• Relying on Section 9 of the Foreigners Act, 1946, the High Court emphasised that the burden of proving Indian citizenship rests entirely on the proceedee, as the relevant facts are especially within his or her knowledge, and that this burden does not shift even in ex parte proceedings. 
• The High Court held that where no evidence is produced, the Tribunal is justified in declaring the proceedee a foreigner based on the reference made against them. 

What were the Court's Observations? 

• On the constitutional significance of citizenship determination: The Court observed that citizenship and foreigner status occupy a field of high constitutional and legal significance, and that the issue must be decided in accordance with the requirements of fairness. 
• On the State's interest in preventing illegal claims: The Court acknowledged that the State has a legitimate and compelling interest in ensuring that persons not legally entitled to claim Indian citizenship do not secure such status by misuse of process, false claim, or by taking advantage of delays. 
• On procedural fairness: The Court stressed that this objective cannot come at the cost of procedural fairness, holding that the determination of such status must be made through a process which is fair, lawful, and reasonable, and that the statutory burden under Section 9 of the Foreigners Act, 1946 remains fully applicable. 
• On the scope of the order: The Bench clarified that it had not examined the merits of the appellants' claims to Indian citizenship, nor expressed any opinion on the genuineness, admissibility, relevance, or sufficiency of any document relied upon by them, holding that those questions must be decided by the concerned Tribunal independently. 
• On the nature of the remand: The Court clarified that the remand was not intended to confer any equity in favour of a person unable to establish his or her claim, but was only to ensure that the serious consequence of being declared a foreigner follows from an adjudication satisfying the requirements of the Foreigners Act, 1946, the Foreigners (Tribunals) Order, 1964, and the constitutional mandate of fairness. 
• On setting aside the judgments: Accordingly, the Court set aside both the Gauhati High Court judgments and the corresponding opinions and orders passed by the concerned Foreigners Tribunals, directing that the Tribunals shall decide the cases afresh, uninfluenced by any observations made by the High Court or by the Tribunals in the earlier opinions. 

What is the Foreigner’s Act, 1946? 

About: 

• Enacted by the Imperial Legislative Assembly on 23 November 1946, before India's independence, to confer certain powers on the Central Government in respect of foreigners. 
• It repealed the earlier Foreigners Act, 1864, the Foreigners Act, 1940, and the Foreigners Act (Amendment) Ordinance, 1946. 
• The Act extended to the whole of India. 
• The Foreigners Act, 1946 stands repealed. It was repealed by the Immigration and Foreigners Act, 2025 (Act No. 13 of 2025), 

Key Provisions: 

• The Act defines a "foreigner" as a person who is not a citizen of India. 
• Section 9 provides that where a person's nationality is not evident under Section 8, the burden of proving Indian citizenship lies on that person. 
• Under the Foreigners (Report to the Police) Order, 2001 — made under this Act — anyone who has reason to believe that a foreigner without valid documents, or overstaying their authorized period, is being accommodated on premises they occupy or control must inform the nearest police station within 24 hours. 
• The Act empowers the Government to detain a person until their deportation to their country of origin.

How is Citizenship Defined? 

Meaning and Basic Concept: 

• Citizenship signifies the relationship between an individual and the state. 
• Like other modern states, India recognises two categories of people — citizens and aliens. Citizens are full members of the Indian state, owe allegiance to it, and enjoy all civil and political rights. 
• Citizenship is inherently a concept of exclusion, as it distinguishes citizens from non-citizens. 

Principles for Grant of Citizenship: 

• Jus soli – confers citizenship on the basis of place of birth. 
• Jus sanguinis – confers citizenship on the basis of blood ties/descent. 
• Since the Motilal Nehru Committee (1928), Indian leadership favoured the more inclusive principle of jus soli. 
• The Constituent Assembly rejected the racial concept of jus sanguinis as being contrary to Indian ethos. 

Constitutional Provisions: 

• Citizenship falls under the Union List, placing it within the exclusive legislative jurisdiction of Parliament. 
• The Constitution does not itself define "citizen," but lays down categories of persons entitled to citizenship in Part II (Articles 5 to 11). 
• Unlike most other constitutional provisions, which came into force on 26 January 1950, Articles 5–11 were enforced on 26 November 1949, the date the Constitution was adopted. 

Article 5 — Citizenship at Commencement of the Constitution 

• Granted citizenship to all persons domiciled and born in India. 
• Extended to persons domiciled (but not born) in India if either parent was born in India. 
• Also covered persons ordinarily resident in India for more than five years, who could apply for citizenship. 

Article 6 — Rights of Citizenship of Migrants from Pakistan 

• Persons who migrated to India before 19 July 1949 automatically became Indian citizens if either a parent or grandparent was born in India. 
• Those entering India after this date were required to register themselves. 

Article 7 — Rights of Citizenship of Migrants to Pakistan 

• Covered persons who migrated to Pakistan after 1 March 1947 but subsequently returned to India on resettlement permits. 
• The law treated those who migrated from Pakistan more favourably (as "refugees") compared to those who moved to Pakistan and later returned. 

Article 8 — Rights of Citizenship of Persons of Indian Origin Residing Outside India 

• Any Person of Indian Origin residing outside India — or whose parent/grandparent was born in India — could register as an Indian citizen with an Indian Diplomatic Mission. 

Article 9 — Voluntary Acquisition of Foreign Citizenship 

• A person who voluntarily acquired the citizenship of a foreign state ceased to be an Indian citizen. 

Article 10 — Continuance of Citizenship Rights 

• Every person deemed a citizen under the foregoing provisions continues to be a citizen, subject to any law made by Parliament. 

Article 11 — Parliament's Power to Legislate on Citizenship 

• Empowers Parliament to make provisions regarding acquisition, termination, and all other matters relating to citizenship.