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2026 Supreme(SC) 786
SUPREME COURT OF INDIA
Vikram Nath, Sandeep Mehta, JJ.
Sabitri Dey @ Swasthi Dey & Ors. – Appellants
Versus
Union Of India & Ors. – Respondents
Civil Appeal No(s). 2820/2024 With Civil Appeal No(S)…… /2026 @ SLP(C) No. 9745/2017 With Civil Appeal No(S). /2026 @ SLP(C) Nos. 33488-33489/2017 With Civil Appeal No(S). /2026 @ SLP(C) NO. @ Diary No(s). 27282/2017 With C.A. No. 2840/2024 With C.A. No. 3521/2024 With C.A. No. 3520/2024 With Crl. A. No. 1334/2024 With C.A. No. 2821/2024 With C.A. No. 3403-3404/2025 With C.A. No. 5806/2025 With C.A. No. 1579/2025 With C.A. No. 1577-1578/2025 With C.A. No. 1574-1575/2025 With C.A. No. 6870/2025 With C.A. No. 5805/2025 With C.A. No. 5789/2025 With Crl.A. No. 628/2025 With Criminal Appeal No(S). /2026 @SLP(Crl) No. 10767/2018 With C.A. No. 1573/2025 With C.A. No. 4305-4306/2025 With Criminal Appeal No(S). /2026 @ SLP(Crl.)No. @ Diary No(s). 37766/2017 With C.A. No. 4858/2024 With Civil Appeal No(S). /2026 @ SLP(C) No. 23494/2017 With C.A. No. 3751/2025 With C.A. No. 2836/2024 With Civil Appeal No(S). /2026 @SLP(C)NO.24686/2016 AND With Civil Appeal No(S). /2026 @ SLP(C) No. @ Diary No.15744 OF 2023
Decided On : 13-07-2026
Important Points
Subject
Administrative and Constitutional Law - Citizenship and Quasi-judicial Proceedings
Act Referred
Headnote
(B) Procedural fairness - Even in ex parte proceedings, a statutory forum must perform an adjudicatory function - Mere non-appearance does not absolve the tribunal of the obligation to examine material on record - A declaration of foreigner status carries grave civil consequences and requires a reasoned opinion based on an objective assessment of evidence. (Paras 15, 32, 42)
(C) Appellate scope - Where the statutory forum fails to conduct a proper factual inquiry, the appellate court should not function as the first forum for appreciation of evidence; proceedings should be remitted to ensure a proper adjudication. (Paras 37-38)
Facts of the case:
Appellants were declared foreigners by statutory tribunals in proceedings that were either entirely ex parte or became effectively ex parte. These declarations were challenged on the grounds that they were made without providing meaningful opportunity for contest, and that the tribunals failed to adequately consider the evidence or the material basis of the reference.
Findings of Court:
The Court held that the summary declaration of foreigner status without a reasoned and objective adjudication is inconsistent with the requirements of law. The tribunal's duty is not merely to accept the reference but to satisfy itself that the material on record supports the conclusion. Appeals to higher courts for factual appreciation cannot substitute the primary adjudication required by the statutory framework.
Issues: Whether an opinion declaring a person a foreigner can be sustained when the proceeding before the statutory tribunal was ex parte or effectively ex parte, without a meaningful examination of the notice, opportunity of hearing, the basis of the reference, and the evidence adduced.
Ratio Decidendi: The statutory burden of proof placed on a person does not authorize a mechanical declaration of status. Adherence to natural justice and fair procedure is mandatory, as such declarations involve grave civil consequences including detention and potential statelessness. The tribunal must record a reasoned opinion reflective of an objective assessment, even in the absence of the proceedee.
Result: Appeals allowed; matters remitted to the concerned tribunals for fresh adjudication.
For the Appellant(s) : Mr. Talha Abdul Rahman, AOR Ms. Rupali Samuel, Adv. Mr. Faizan Ahmed, Adv. Ms. Aditi Soni, Adv. Mr. Sudhanshu Tewari, Adv. Mr. Satyajeet Kumar, AOR Ms. Kamakshi S. Mehlwal, AOR Mr. Syed Mehdi Imam, AOR Mr. Milan Laskar, Adv. Mr. Mohd. Parvez Dabas, Adv. Mr. Uzmi Jamil Husain, Adv. Mr. Pradeep Kumar Yadav, Adv. Ms. Anjale Kumari, Adv. Mr. P Murugesan, Adv. Mr. Taiyyab Khan Salmani, Adv. Ms. Chhaya, Adv. Ms. Vishal Thakre, Adv. Mr. Gopal Singh, Adv. Mr. Tota Ram, Adv. Mr. Neeraj Srivastava, Adv. Mr. Sanjeev Malhotra, AOR Mr. Pravir Choudhary, AOR Mr. Tariq Adeeb, Adv. Mr. Satya Mitra, AOR Mr. P. K. Jain, AOR Mr. Arup Banerjee, AOR Mr. Shiv Pratap Singh, Adv. Mr. R.k.srivastava., Adv. Mr. Kumar Rupak, Adv. Mr. Sanjeev Sharma., Adv. Mr. Sanjiv Sharma, Adv. Mr. Rajiv Agnihotri, Adv. Mr. R.k.srivastava, Adv. Mrs. Noopur Dubey, Adv. Mr. Tanishq Dev Kadam, Adv. Mr. Pijush K. Roy, Sr. Adv. Mr. Pritthish Roy, Adv. Mr. Apoorva Kr. Sharma, Adv. Mr. Apoorva Kr. Singh, Adv. Mr. Swarandeep Singh, Adv. Ms. Kakali Roy, AOR Mr. Veshal Tyagi, Adv. Mr. V. Elanchezhiyan, AOR Mr. Danish Saifi, Adv. Mr. Shafik Ahmed, Adv. Mr. Mohd Jawaid H Khan, Adv. Mr. Sanjay Hegde, Sr. Adv. Mr. Mrigank Prabhakar, AOR Mr. Anas Tanwir, Adv. Mr. Ebad Ur Rahman, Adv. Ms. Sakshi Banga, Adv. Ms. Astha Singh, Adv. Mr. Fuzail Ahmad Ayyubi, AOR Mr. Ibad Mushtaq, Adv. Mr. Mustafa Khaddam Hussain, Adv. Ms. Akanksha Rai, Adv. Ms. Gurneet Kaur, Adv. Mr. Avijit Roy, AOR M/S. Equity Lex Associates, AOR Mr. Salman Khurshid, Sr. Adv. Mrs. Naghma Imtiaz, Adv. Mr. Zargham Ahmed, Adv. Mr. Saif Naseem, Adv. Ms. Sonika Choudhary, Adv. Mrs. Tehshina, Adv. Ms. Atiga Singh, Adv. Mr. Rahul Pratap, AOR Mr. Aditya Sidhra, Adv. Mr. Muhammad Maroof, Adv. Mr. Abhishek Jaiswal, Adv. Mr. Tayenjam Momo Singh, Sr. Adv. Mr. Abdur Razzaque Bhuyan, Sr. Adv. Mr. Adeel Ahmed, AOR Mr. Azizul Hoque, Adv. Ms. Taqdees Fatima, Adv. Mr. Nekibur Zaman Choudhury, Adv. Mr. Nesim Akram Mazarbhuiya, Adv. Ms. Shahnaz, Adv. Mr. Syed Ahmed Saud, Adv. Mr. Mohd. Parvez Dabas, Adv. Mr. Daanish Ahmed Syed, Adv. Mr. Uzmi Jameel Husain, Adv. Mr. Mohd Shahib, Adv. M/s Shakil Ahmad Syed, AOR
For the Respondent(s): Mr. Tushar Mehta, Solicitor General Mrs. Aishwarya Bhati, A.S.G. Mr. Rajat Nair, Adv. Ms. Ruchi Kohli, Adv. Mr. Mohd. Akhil, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Durga Dutt, Adv. Mr. Madhav Sinhal, Adv. Mr. N. Visakamurthy-aor, Adv. Mr. Arvind Kumar Sharma, AOR Mr. Chinmoy Sharma, Sr. A.A.G. Mr. Shuvodeep Roy, AOR Mr. Deepayan Dutta, Adv. Mr. Saurabh Tripathi, Adv. Mr. Vijay Deora, Adv. Mr. Aditya Agarwal, Adv. Mr. Sahil Tagotra, AOR Ms. Shreya Kasera, Adv. Mr. Prateek Kumar, AOR Mr. Devansh Rai, Adv.
| Table of Content |
|---|
| 1. consolidation of appeals involving challenges to ex parte foreigner status declarations. (Para 1 , 2 , 3 , 4) |
| 2. classification of cases into procedural archetypes for judicial review. (Para 5 , 6 , 7) |
| 3. statutory burden of proof does not negate the necessity of fair quasi-judicial adjudication. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. constitutional requirement of fair procedure for all persons regardless of citizenship status. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28) |
| 5. requirement to remit ex parte orders to tribunals for reconsideration to ensure procedural fairness. (Para 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44) |
| 6. final orders for remand and procedural directions for fresh tribunal adjudication. (Para 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56) |
JUDGMENT :
VIKRAM NATH, J.
1. Delay condoned in those matters in which delay, if any, is there. Leave granted in SLP(C) No. 9745 of 2017, SLP(C) Nos. 33488-33489 of 2017, Diary No. 27282 of 2017, SLP(Crl.) No. 10767 of 2018, Diary No. 37766 of 2017, SLP(C) No. 23494 of 2017, Diary No. 15744 of 2023 and SLP(C) No. 24686 of 2016.
2. The present batch of appeals arises out of proceedings before the Foreigners Tribunals in the State of Assam and, in some matters, before the erstwhile Illegal Migrants (Determination) Tribunals. In all these matters, the appellants have been declared to be foreigners and the said opinions have been affirmed by the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh at Guwahati1[hereinafter referred to as “the High Court”].
3. The common grievance of the appellants is that the opinions against them were rendered in proceedings which were either ex parte or had become effectively ex parte, and that the statutory determination of their status was made without a full and meaningful opportunity to contest the reference. Since the question involved is common, these matters have been heard together and are being decided by this common judgment.
4. We shall now briefly detail the factual and procedural background of each of these appeals, to the extent necessary for appreciating the common issue which arises for consideration:
4.1. In C.A. No. 2820 of 2024, Sabitri Dey @ Swasthi Dey and Others v. Union of India and Others, the appellants assail the judgment dated 16.10.2020 passed by the High Court in WP(C) No. 8018 of 2019, whereby the ex parte opinion dated 09.05.1997 passed by the Illegal Migrants (D) Tribunal, Diphu, Karbi Anglong, in I.M.(D).T. Case No. 51 of 1995 was affirmed. The High Court noticed that the reference was made against Sabitri Dey @ Swasthi Dey, her husband late Shambhu Dey, and their two children, Mithu Dey and Baby Dey. The High Court further noticed that the notice had been received by late Shambhu Dey, but none of the proceedees appeared before the Tribunal, filed a written statement, or engaged counsel, and dismissed the writ petition also on the ground of delay and laches.
4.2. In the Civil Appeal arising out of SLP(C) No. 9745 of 2017, Ajbahar Ali v. Union of India and Others, the appellant challenges the order dated 06.09.2016 passed by the High Court in WP(C) No. 4782 of 2016, arising from the ex parte order dated 11.02.2016 passed by the Foreigners Tribunal, Bongaigaon No. 2, Abhayapuri. The Tribunal recorded that notices had been served upon the appellant and that the notice serving police personnel were examined to confirm service, but the appellant did not appear and the reference was decided ex parte.
4.3. In the Civil Appeal arising out of SLP(C) Nos. 33488-33489 of 2017, Md. Akbar Ali v. Union of India and Others, the appellant challenges the order dated 22.11.2016 passed by the High Court in WP(C) No. 6912 of 2016 and the order dated 07.04.2017 passed in Review Petition No. 186 of 2016. The High Court recorded that notice issued by the Tribunal had been served, that the appellant’s brother had appeared and sought time on t
