Inclusion in Draft NRC Does Not Override Foreigner Declaration; Appeal Dismissed

A bench of Justices Sanjay Karol and Manoj Misra heard an appeal against an order of the Foreigners Tribunal, Jorhat, which had on 4 March 2017 declared the appellant to be a foreigner, and against the Guwahati High Court’s dismissal of a writ petition challenging that declaration. The primary issues before the Court were whether the Tribunal’s and High Court’s findings suffered any legal infirmity warranting interference under Article 136, and whether the appellant’s inclusion in the draft National Register of Citizens (NRC) published in 2018 nullified the earlier declaration.

The Court dismissed the appeal and upheld the findings of the Tribunal and the High Court. It held that the findings were not perverse, manifestly erroneous or unreasonable, and that Section 9 of the Foreigners Act, 1946 placed the burden on the proceedee to prove that he was not a foreigner. The Court further held that inclusion of a name in the draft NRC could not annul a prior declaration by a competent authority under the Foreigners Act. The Court, in its reasoning, observed: “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”. The Court also reiterated that “Section 9 of the 1946 Act places the burden of proof on the proceedee to prove that he is not a foreigner.”

Background The appellant, Rofiqul Hoque, faced a reference under the Foreigners Act after a preliminary enquiry by the Superintendent of Police (Border), Sivasagar. The Tribunal issued notice and, after proceedings, declared on 4 March 2017 that the appellant had entered India illegally after 25 March 1971. The appellant produced a duplicate school leaving certificate and extracts of electoral rolls (1966, 1970, 1993, 2010, 2016) to trace his ancestry to one Joynal Abdin Seikh and to prove domicile and birth in India. The Tribunal found material discrepancies in the documents — including inconsistent ages, variations in parentage entries, changes of village of residence across rolls, and the late issuance of a duplicate school certificate without the headmaster's evidence — and concluded that the appellant failed to discharge the burden under Section 9.

The Guwahati High Court reviewed the evidence, enumerated defects in the documents, found the appellant’s narrative to suffer from “multiple material contradictions and omissions rendering the same not only suspicious but highly improbable,” and declined to interfere with the Tribunal’s order. After the High Court’s decision the appellant was detained. He obtained a PAN in December 2017 and his name appeared in the draft NRC published on 30 July 2018; he sought relief before this Court and interim release was ordered by this Court in July 2019 subject to conditions. The appellant argued that inclusion in the draft NRC and subsequent documents negated the earlier declaration; respondents contended that a quasi‑judicial declaration by the Tribunal could be set aside only by a superior court and that the draft NRC could not override such a declaration.

The Supreme Court examined the statutory scheme, Rule 4A of the Citizenship Rules and the Schedule governing the Assam NRC process, and followed the three‑Judge Bench decision in Abdul Kuddus v. Union of India, holding that sub‑para (2) to para 3 of the Schedule disallowed inclusion of persons already declared foreigners by the competent authority. The Court concluded that inclusion of the appellant’s name in the draft NRC had no bearing on the Tribunal’s declaration. The appeal was dismissed, the interim release order was discharged, and the appellant was to be treated and dealt with as a foreigner. Pending applications stood disposed of.

Case Details: Case No.: CRIMINAL APPEAL NO. 2686 OF 2025 (Arising out of SLP (Crl.) No.5598/2019) (2025 INSC 730) Case Title: Rofiqul Hoque v. The Union of India & Ors. Appearances: For the Petitioner(s): Not indicated in the judgment For the Respondent(s): Not indicated in the judgment