Kiran Raj

The Supreme Court of India Division Bench of Justice Sanjay Karol and Justice Manoj Misra held that the inclusion of a person’s name in the draft National Register of Citizens (NRC) published in Assam in 2018 "would have no bearing on the order passed by the Tribunal, affirmed by the High Court, declaring the appellant a foreigner." Dismissing a criminal appeal, the Court upheld the findings of the Foreigners Tribunal and the Guwahati High Court, confirming the appellant’s status as a foreigner under the Foreigners Act, 1946. The Court directed that the interim relief granted earlier stands discharged and that the appellant shall be treated and dealt with as a foreigner.

The appeal arose from proceedings under the Foreigners Act, 1946, following an order dated 04.03.2017 passed by the Foreigners Tribunal, Jorhat, Assam, declaring the appellant a foreigner who had entered India illegally after 25.03.1971. This declaration was based on a reference made by the Superintendent of Police (Border), Sivasagar, alleging that the appellant was illegally residing in Assam.

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Following the reference, the Tribunal issued a notice to the appellant calling upon him to show cause as to why he should not be declared a foreigner. The appellant filed a written statement dated 15.06.2016, asserting that he was the son of Md. Majut Ali and a resident of Daobhangi village under Gauripur police station in the district of Dhubri. He claimed Joynal Abdin Seikh as his grandfather and Moriyom Bibi as his grandmother. His mother’s name was given as Sopia Bibi (Begum). He stated that his grandfather’s name was included in the voters list of 1966 and his grandmothers in that of 1970. He claimed to be born in 1996 and asserted Indian citizenship.

To support his claims, the appellant submitted the following documents:

• School certificate (Exhibit 1)

• Voter list extracts for Gauripur Assembly Constituency for the years 1966 (Exhibit 2), 1970 (Exhibit 3), 1993 (Exhibit 4), 2010 (Exhibit 5), and 2016 (Exhibit 6).

Exhibit 1 was a duplicate school leaving certificate dated 03.05.2014, issued by the headmaster of No. 1236 Khagrabari LP School, certifying that Rofiqul Hoque was the son of Majut Ali and Sopia Bibi, born on 20.07.1996 and had left the school on 31.12.2004.

The Tribunal, however, observed that the place of residence of Joynal Abdin as shown in the voter lists was inconsistent with the appellant’s claims. For instance, the 1993 voter list showed Joynal Abdin as a resident of Kekurchar village, while the appellant claimed he resided in Daobhangi. The Tribunal noted that the appellant did not state that his grandfather had moved from one village to another, and concluded that Joynal Abdin Seikh of Daobhangi and of Kekurchar appeared to be different individuals.

The Tribunal also found discrepancies in other documents, including voter lists and the school certificate. The High Court, upon dismissal of the writ petition filed against the Tribunal’s order, scrutinized the evidence and observed several inconsistencies:

• The school leaving certificate was a duplicate, issued a decade after the appellant left school, with no explanation for the delay or proof of loss of the original. The headmaster was not examined.

• The 1966 voter list included only the name of Joynal Abdin Seikh, which alone was insufficient.

• The 1970 voter list included Joynal Abdin Seikh and Moriyom Bibi (wife), but the age of Moriyom Bibi (27 years) raised doubts since her name did not appear in the 1966 list.

• The 1993 list included Majut Ali, son of Joynal Abdin, aged 30, which was deemed unusually late for a first appearance.

• Joynal Abdin’s age in the 1966 list (38 years) and 1993 list (70 years) did not align.

• The 1993 list showed Kekurchar as the village, inconsistent with Daobhangi claimed by the appellant.

• Sopia Bibi’s name was absent in the 1993 list.

• In 2010, Majut Ali’s age discrepancy (30 in 1993 and 45 in 2010) and change in domicile further raised doubts.

• The 2016 voter list showed overwriting in the age of Sopia Bibi, creating doubts about its authenticity.

The High Court concluded that the appellant failed to discharge the burden under Section 9 of the Foreigners Act to prove Indian citizenship and described the narrative presented as suffering from "multiple material contradictions and omissions rendering the same not only suspicious but highly improbable."

Following the High Court’s order, the appellant was detained. Nearly two years later, he filed an SLP along with an application to introduce additional documents. He contended that he had been issued a PAN card on 26.12.2017 and that his name appeared in the draft NRC published on 30.07.2018. On 03.07.2019, the Supreme Court condoned the delay and issued notices. Subsequently, on 26.07.2019, the Court directed his release from detention subject to conditions, owing to the appearance of his name in the NRC draft.

The Court identified two issues:

(a) Whether the findings of the Tribunal and High Court suffered from legal infirmity warranting interference under Article 136 of the Constitution;

(b) Whether inclusion in the draft NRC invalidated the Tribunal’s declaration.

On issue (a), the Court stated: "Section 9 of the 1946 Act places the burden of proof on the proceedee to prove that he is not a foreigner."

The Court recorded that the appellant sought to establish his Indian citizenship through ancestry linked to Joynal Abdin Seikh, producing voter lists and a school certificate. However, the Tribunal and High Court found inconsistencies in the voter lists, including different villages of residence and unexplained age variations. The Court stated: "In such circumstances, the appellant ought to have stated in his affidavit, or demonstrated by some documentary evidence, that his ancestors had migrated from that village to the other village."

The Court observed that the school certificate was obtained ten years after the appellant left school and its authenticity was unverified, stating: "Moreover, the headmaster of the school was not called for to prove the authenticity of the certificate of which duplicate was produced."

The Court concluded: "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." It further held that no admissible evidence was ignored or misread.

On issue (b), the Court examined Rule 4A of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, and the Schedule appended to it. Paragraph 3(2) of the Schedule provides: "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."

The Court recorded that the appellant had already been declared a foreigner by the Tribunal before the draft NRC was published. Citing Abdul Kuddus v. Union of India, the Court observed: "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."

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The Court clarified that the competent authority as referred to in the Rules is the Tribunal under the Foreigners Act. It held: "Even if [the name] has been included, it would not annul the declaration made by the Tribunal."

The Supreme Court dismissed the appeal and affirmed the decisions of the Foreigners Tribunal and the Guwahati High Court. The Court explicitly stated: "We are of the view that there is no merit in this appeal. The same is, accordingly, dismissed."

Further, it directed: "The release order which was passed at an interim stage stands discharged. Consequently, the appellant shall be treated and dealt with as a foreigner."

All pending applications stood disposed of accordingly.

Advocates Representing the Parties:

For the Petitioners: Mr. Pijush K. Roy, Senior Advocate; Mrs. Kakali Roy, Advocate; Mr. Rajesh Kumar Chaurasia, Advocate-on-Record; Mr. Sujeet Kumar, Advocate; Mr. Anurag Jain, Advocate; Mr. Shyamal Kumar, Advocate; Ms. Soni, Advocate; Mr. Shailendra Kumar Nirmal, Advocate

For the Respondents: Mr. Arvind Kumar Sharma, Advocate-on-Record; Mr. Shuvodeep Roy, Advocate-on-Record; Mr. Deepayan Dutta, Advocate; Mr. Saurabh Tripathi, Advocate

Case Title: Rofiqul Hoque v. Union of India & Ors.

Neutral Citation: 2025 INSC 730

Case Number: Criminal Appeal No. 2686 of 2025 (Arising out of SLP (Crl.) No.5598/2019)

Bench: Justice Sanjay Karol, Justice Manoj Misra

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