Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. Per contra, on behalf of the respondents, it was submitted that a declaration made by the Tribunal that a person is a foreigner does not get effaced or annulled by mere inclusion of that person’s name in the draft NRC because the proceedings of the Tribunal are quasi- judicial in nature and once a declaration is made by it, the same can be set aside only by a superior court and not by the Registering Authority. It was also argued on behalf of the respondents that the discrepancies in the documents furnished by the appellant by way of proof of his citizenship were not only in respect of residence of the persons through whom the appellant claimed to be a citizen but 576 also in respect of the school certificate, which was found doubtful and bogus. Therefore, as by Section 9 of the 1946 Act burden is on the proceedee, the finding of the Tribunal cannot be faulted.
11. We have considered the rival submissions and have perused the materials on record. Issues
12. Two issues arise for our consideration in this appeal, namely, (a) whether the findings returned by the Tribunal and the High Court suffer from any legal infirmity as to warrant an interference in exercise of this Court’s power under Article 136 of the Constitution of India? (b) whether on inclusion of the name of the appellant in the draft NRC published by the competent authority in the year 2018, the declaration made by the Tribunal, as affirmed by the High Court, would be rendered invalid? Discussion/ Analysis
13. Issue (a) – As regards the claim of the appellant that the Tribunal and the High Court adopted a pedantic approach in discarding the documents for minor discrepancies and, therefore, their finding stands vitiated, it be noticed that Section 9 of the 1946 Act places the burden of proof on the proceedee to prove that he is not a foreigner7. Consequently, the burden was on the appellant to establish by cogent documents or other evidence that either he himself had entered the territory of Assam prior to 25.03.1971 or his ancestors had entered the territory prior to the said date.
14. In that regard, the appellant traced his ancestry from Joynal Abdin Seikh by claiming him to be his grandfather. Voter lists were produced to show that Joynal’s name was there prior to the cut-off date and the subsequent voter lists reflected that appellant was part of that family.
15. The Tribunal as well as the High Court have considered these documents and have found that those earlier voter lists relate to a person located in some other village than the one of which the appellant claimed to be a resident. In such circumstances, the appellant ought to have stated in his affidavit, or demonstrated by Sarbananda Sonowal v. Union of India and another, (2005) 5 SCC 665 [2025] 6 S.C.R. Rofiqul Hoque v. The Union of India & Ors. some documentary evidence, that his ancestors had migrated from that village to the other village where the appellant was reported to be residing, but, according to the Tribunal, there was no such claim by the appellant in his affidavit. Therefore, the Tribunal discarded the probative value of those voter list entries. Interestingly, the school leaving certificate on which heavy reliance was placed by the appellant was also doubted as there appeared no reason for it to have been obtained 10 years after passing from the institution. Moreover, the headmaster of the school was not called for to prove the authenticity of the certificate of which duplicate was produced.
16. For the foregoing reasons, if the Tribunal and the High Court held that the appellant could not discharge his burden of proving that he is not a foreigner, the view taken by them cannot be held perverse, or manifestly erroneous, or unreasonable, as to warrant interference under Article 136 of the Constitution of India.
17. That apart, it is not the case of the appellant that any material/ admissible evidence was ignored or there was misreading of any of the documents produced by the appellant. We are, therefore, of the view that the findings returned by the Tribunal and the High Court do not suffer from any legal infirmity.
18. Issue (a) is decided in the above terms.
19. Issue (b) – As regards the effect of inclusion of the name of the appellant in the draft NRC, which was published by the competent authority in 2018, it would be apposite to notice Rule 4 A of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 20038 as inserted by GSR No.803 (E), dated 09.11.2009, with effect from 09.11.2009. Rule 4 A reads thus: “4A. Special provisions as to National Register of Indian Citizens in State of Assam – (1) Nothing in rule 4 shall, on and after the commencement of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Amendment Rules, 2009, apply to the State of Assam. (2) The Central Government shall, for the purpose, of the National Register of Indian Citizens in the State of 2003 Rules 578 Assam, cause to carry out throughout the State of Assam for preparation of the National Register of Indian Citizens in the State of Assam by inviting applications from all the residents, for collection of specified particulars relating to each family and individual, residing in a local area in the State including the citizenship status based on the National Register of Citizens 1951 and the [electoral rolls upto the midnight of the 24th day of March, 1971]. (3) The Registrar General of Citizens Registration shall notify the period and duration of the enumeration in the Official Gazette. (4) The manner of preparation of the National Register of Indian Citizens in the State of Assam shall be such as specified in the Schedule appended to these rules.” (Emphasis supplied)
20. Sub-rule (4) of Rule 4 A provides that the manner of preparation of the National Register of Indian Citizens in the State of Assam shall be such as specified in the Schedule appended to these rules.
21. The Schedule attached to the 2003 Rules is titled “Special Provision As To Manner Of Preparation Of National Register Of Indian Citizen In State Of Assam”.
22. Paragraph 3 of the aforesaid Schedule provides as under: “3. Scrutiny of applications – (1) The scrutiny of applications received under sub-paragraph (3) of paragraph 2 shall be made by comparing the information stated in the application form with the official records and the persons, of whom the information is found in order, shall be eligible for inclusion of their names in the consolidated list. (2) The names of persons who have been declared as illegal migrants or foreigners by the competent authority shall not be included in the consolidated list: Provided that the names of persons who came in the State of Assam after 1966 and before the 25th March, 1971 and registered themselves with the Foreigner Registration Regional Officer and who have not been [2025] 6 S.C.R. Rofiqul Hoque v. The Union of India & Ors. declared as illegal migrants or foreigners by the competent authority shall be eligible to be included in the consolidated list. (3) The names of persons who are originally inhabitants of the State of Assam and their children and descendants, who are Citizens of India, shall be included in the consolidated list if the citizenship of such persons is ascertained beyond reasonable doubt and to the satisfaction of the registering authority; (4) The Local Registrar of Citizens Registration may, in case of any doubt in respect of parental linkage or any particular mentioned in the application received under sub – paragraph (3) of paragraph 2, refer the matter to the District Magistrate for investigation and his decision and Local Registrar of Citizens Registration shall also inform the same to the individual or the family; (5) The Local Registrar of Citizens Registration may, in respect of a person who- (a) was residing in a place other than the State of Assam up to the midnight of the 24th day of March, 1971; or (b)has shifted from one district to another within the State of Assam up to the midnight of the 24th day of March, 1971, verify information relating to such person through inter- state correspondence, or, as the case may be, through inter-district correspondence.” (Emphasis supplied)
23. Sub-para (2) to paragraph 3 makes it clear that the names of persons who have been declared as illegal migrants or foreigners by the competent authority shall not be included in the consolidated list.
24. Admittedly, the draft NRC was published in 2018 and by that time, the appellant had already been declared a foreigner by the Tribunal.
25. Interpreting the consequence of such declaration, a three-Judge Bench of this Court in Abdul Kuddus vs. Union of India and others9, held: (2019) 6 SCC 604 580 “11. It is obvious to us that the persons covered by the sub-para (2) to para 3 of the Schedule i.e. persons who have been declared to be illegal migrants or foreigners by the competent authority fall in a separate and distinct class and in such cases, no enquiry or investigation is required to be conducted in terms of sub-para (4). Such persons cannot, in terms of the specific language used in sub-para (2) to para 3 of the schedule, be included in the National Register of Citizens. The reason as is evident is that their citizenship status has already been determined by the competent authority. A person once declared an illegal migrant or a foreigner cannot claim or put forth the claim to the citizenship of India on the basis that he/she has been residing in the state of Assam”.
26. In Abdul Kuddus (supra), this Court also expounded the expression “competent authority”, as used in sub-para (2) of para 3 of the Schedule to the 2003 Rules, in the following terms: “22. … The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. Pertinently, the rules framed under the Citizenship Act are subordinate legislation. The expression competent authority used in sub-para (2) to para 3 of the Schedule to the 2003 rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act. … Thus, the competent authority referred to in sub-para (2) to para 3 of the Schedule would be, without a doubt, the Tribunal constituted under the Foreigners Act i.e. 1964 Order”. (Emphasis supplied)
27. In view of the decision of this Court in Abdul Kuddus (supra), firstly, consequent to the declaration by the Tribunal that appellant is a foreigner, the name of the appellant could not have been included in the draft NRC and, secondly, even if it has been included, it would not annul the declaration made by the Tribunal. [2025] 6 S.C.R. Rofiqul Hoque v. The Union of India & Ors.
28. For the reasons detailed above, the inclusion of the name of the appellant in the draft NRC would have no bearing on the order passed by the Tribunal, affirmed by the High Court, declaring the appellant a foreigner.
29. Issue (b) is decided in the above terms.
30. In light of the discussion above, and our conclusions on the issues referred to above, we are of the view that there is no merit in this appeal. The same is, accordingly, dismissed. The release order which was passed at an interim stage stands discharged. Consequently, the appellant shall be treated and dealt with as a foreigner. Pending applications, if any, stand disposed of. Result of the case: Appeal dismissed. †Headnotes prepared by: Ankit Gyan