Section 9 of the Foreigners Act, 1946

Source: Supreme Court 

Why in News? 

A bench of Justice Vikram Nath and Justice Sandeep Mehta, in Sabitri Dey @ Swasthi Dey v. Union of India (2026), held that a Foreigners Tribunal cannot use Section 9 of the Foreigners Act, 1946 to mechanically declare a person a foreigner solely because the proceedee failed to appear, and set aside ex parte opinions passed against several alleged foreigners in Assam, remanding the matters for fresh adjudication. 

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

• The appeals arose out of proceedings before Foreigners Tribunals in Assam under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, culminating in ex parte opinions declaring the appellants to be foreigners. 
• The Gauhati High Court, in writ proceedings, upheld the Tribunal opinions declaring the appellants foreigners. 
• The common question before the Supreme Court was whether such proceedings can culminate in an ex parte declaration of foreigner status without a meaningful examination of service of notice, opportunity of hearing, the material forming the basis of the reference, and the evidence produced by the State. 
• The Court classified the appeals into three categories: cases where the proceedee never appeared before the Tribunal, cases where the High Court itself undertook appreciation of evidence in writ proceedings, and cases where the proceedee initially participated but later defaulted. 
• The judgment-debtors/appellants challenged the High Court judgments upholding the Tribunal opinions before the Supreme Court. 

What were the Court's Observations? 

• On the scope of Section 9: The Court held that Section 9 of the Foreigners Act places the burden of proving that a person is not a foreigner on the proceedee, but this statutory burden operates within a legal process and cannot replace that process itself. 
• On the Tribunal's duty despite the burden: The Court held that the burden under Section 9 does not authorise the Tribunal to mechanically accept the reference or treat the proceedee's absence as proof that the allegation is correct, and that the Tribunal must independently examine the material produced before it. 
• On when the burden arises: The Court held that the statutory burden under Section 9 arises only after the proceedee has been served with the "main grounds" on which he or she is alleged to be a foreigner, and that this expression cannot be reduced to a bare allegation or suspicion. 
• On the interplay between Section 9 and Paragraph 3 of the 1964 Order: The Court held that the burden under Section 9 arises and is discharged within the procedural safeguards of Paragraph 3 of the 1964 Order, and that the two operate together rather than in conflict. 
• On the Tribunal's quasi-judicial character: The Court held that even where a person fails to appear despite service of notice, the Tribunal continues to function as a quasi-judicial body and must satisfy itself that notice was duly served, the main grounds were supplied, evidence was produced by the State, and such material is sufficient to support its conclusion. 
• On reliance on Md. Rahim Ali @ Abdur Rahim v. State of Assam: The Court relied on its earlier ruling that the statutory burden does not permit authorities to proceed on bare allegations or unsupported suspicion, and that the proceedee cannot be expected to prove a negative without knowing the case to be met. 
• On Articles 14 and 21: The Court held that these Articles use the expressions "any person" and "no person" respectively, and are therefore available to every person within Indian territory, including those whose citizenship is under inquiry before a Foreigners Tribunal. 
• On the role of natural justice: The Court held that principles of natural justice supplement the statutory scheme, and that adequate notice and a meaningful opportunity of hearing are essential before a person can be declared a foreigner. 
• On the three categories of appeals: The Court held that in all three categories, the Tribunal was required to independently examine the reference, the State's evidence, and the material on record before recording its opinion, and that the High Court could not ordinarily substitute the Tribunal as the first forum to appreciate factual material. 
• On relief granted: The Court set aside the Gauhati High Court judgments upholding the Tribunal opinions and remanded the matters to the concerned Tribunals for fresh adjudication, clarifying that the remand does not dilute the statutory burden under Section 9 or confer any advantage on the appellants, and was ordered only to ensure a fair, lawful and reasoned adjudication given the serious consequences of detention, deportation or statelessness. 

What is Section 9 of the Foreigners Act, 1946? 

About the Act: 

• 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). 

Section 9: 

• Section 9 – Burden of Proof: Where any question arises under the Foreigners Act, 1946 or any order or direction made under it — other than a case falling under Section 8 — as to whether a person is a foreigner, or is a foreigner of a particular class or description, the burden of proving that they are not a foreigner, or not a foreigner of that particular class or description, lies on that person.  
• This burden applies notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872.