[This is a guest post by Douglas McDonald-Norman. The author is grateful to P Baruah for their invaluable advice and encouragement in drafting this post.]
On 13 July 2026, the Supreme Court (Vikram Nath and Sandeep Mehta JJ) delivered its judgment in Sabitri Dey v Union of India 2026 INSC 694 (Sabitri Dey). This judgment addresses a batch of appeals arising from Assam’s Foreigners Tribunals and the former Illegal Migrants (Determination) Tribunals (IMDT). There were 28 separate appeals before the Supreme Court, linked by a key question: ‘whether the declaration of a person as a foreigner, with the serious consequence which follow such declaration, can be sustained when the adjudication before the statutory forum was ex parte or had become effectively ex parte’ (¶6].
In other words: in what circumstances can a tribunal declare a person to be a foreigner when that person does not appear before that tribunal?
In its judgment, the Supreme Court emphasises that Foreigners Tribunals cannot simply dispense with the need for lawful, rational adjudication simply because an applicant does not appear. They still need to consider whether a person has been afforded due process and whether there is sufficient evidence to conclude that a person is a foreigner. Like in the Court’s 2024 judgment in Rahim Ali v State of Assam (which I wrote about for this blog), this is a judgment in which the Court emphasises its role as a court, interpreting statutes and orders rather than making big policy proclamations or speaking in the language of high constitutional politics. Like Rahim Ali, this judgment demonstrates how administrative law and statutory construction can restrain abuses of power in circumstances where the courts have otherwise failed to do so. But, like Rahim Ali, this judgment demonstrates the limits of courts and judgments in fixing a broken system, papering over fatally flawed processes and potentially dooming litigants to an endless merry-go-round.
The scale of the problem
The impugned decisions of the Foreigners Tribunals were made under the Foreigners Act 1946 and the Foreigners (Tribunals) Order 1964. (These have now been replaced by the Immigration and Foreigners Act 2025 and the Immigration and Foreigners Order 2025.) Foreigners Tribunals issue ‘opinions’ or ‘findings’ about whether persons appearing before them are foreigners. Their jurisdiction includes a right of appeal by people excluded from the National Register of Citizens in Assam – and hence they provide the only meaningful recourse for the 19 lakh people excluded from the final draft of that register to prove that they are Indian.
The Foreigners Tribunals are deeply flawed institutions. They are not independent from the state. As Bhat, Gupta and Gopujkar have recorded, the Foreigners Tribunals do not adhere to any of the constitutional requirements for the independence of tribunals under the Constitution. Their members are appointed for short terms by the state government and their performance is scrutinised by ‘monitoring committees’, with members denied reappointment based on the proportion of cases identified as foreigners, leading to an organisational culture where members seek to ‘declare the maximum number of people foreigners’. And their decisions can be capricious and irrational; as Darshana Mitra has written, these tribunals ‘are often unforgiving of minor inconsistencies in documentary evidence’ and ‘routinely reject documents because of spelling mistakes’.
These abuses are exacerbated by the fact that, under s 9 of the Foreigners Act 1946, the burden is on an alleged foreigner to prove that they are not a foreigner. This is a key characteristic of the Foreigners Tribunals. The fact that the IMDT placed the burden on the state, not the alleged foreigner, to prove non-citizenship was part of why the Supreme Court struck down those tribunals in its judgment in Sarbananda Sonowal v Union of India.
The Foreigners Tribunals afford a thin patina of legal process to the system of citizenship determination, and not everyone who appears before a Foreigners Tribunal will be found to be a foreigner. They call themselves tribunals and observe many of the forms and procedures that we expect of tribunals and courts in India. But they are not independent and they do not operate fairly, placing heavy and inconsistent burdens on alleged foreigners to satisfy an ever-moving target to prove their citizenship. Like cuckoos in the nest, they mimic the forms of tribunals to play a fundamentally instrumental role in the implementation of state policy.
Ex parte orders are common in Assam’s Foreigners Tribunals. Tens of thousands of people have been declared to be foreigners after hearings in which they did not appear. Often, these ex parte hearings occur because alleged foreigners have not received notice of impending hearings. While there is notionally a uniform procedure by which notice of Foreigners Tribunals proceedings must be given, Bhat, Gupta and Gopujkar note the ‘lack of clear procedural guidelines for service of notice’ – leading to inconsistent and inadequate attempts to notify alleged foreigners. (Dipesh Agrawala has previously recommended a better, more humane system of notice in the tribunals.)
The tribunal decisions examined by the Supreme Court in Sabitri Dey were thus not anomalies or outliers, but rather, emblematic of a broken process for determining who belongs to Assam.
Sabitri Dey: Reasoning and Outcome
Starting points: the onus of proof and the Constitution
In its judgment, the Supreme Court acknowledged that, as noted above, , the burden is on an alleged foreigner to prove that they are not a foreigner (¶11). But that onus of proof does not relieve a tribunal of the obligation to lawfully adjudicate the case, or ‘authorise a mechanical declaration’. A person is not a foreigner simply because they have been referred to a tribunal (¶12). And even a person found to be a foreigner is still entitled to the right to equality under article 14 and the rights to life and liberty under article 21 of the Constitution (¶20). Critically, however, while the Court justified its interpretive approach by references to these constitutional articles, its approach was not principally or solely sourced in the constitutional text. Instead, constitutional rights were used to assist in resolving a question of statutory interpretation and to set a baseline for lawful and reasonable procedures, not as a warrant for the Court to devise and impose its own preferences.
Procedural rights and substantive consequences
The Court emphasised that people in the Foreigners Tribunals have the right to be served with the ‘main grounds’ on which they are alleged to be a foreigner – which means they must ‘know, at least in substance, the basis on which the allegation is founded’ (¶13). And even if the alleged foreigner fails to appear, the Tribunal still has obligations to fulfil. It must ‘satisfy itself that notice was duly served in accordance with law’, it must ‘examine whether the main grounds were made available to the proceedee’, it must ‘consider the evidence produced by the State’ and it must assess whether the material before it can support a conclusion that the alleged foreigner is a foreigner (¶15). In other words, even if an alleged foreigner does not appear, the Tribunal must still deliver ‘objective consideration and meaningful adjudication’ (¶15), and the alleged foreigner is still entitled to procedures and decisions which ‘satisfy the constitutional requirements of fairness, reasonableness and non-arbitrariness’ (¶20).
These obligations are particularly significant because of the enormous consequences of a decision by a Foreigners Tribunal. A person who is found to be a foreigner may lose everything; they may face ‘detention, deportation, separation from family and community’ and ‘even the possibility of statelessness’ (¶18). Any tribunal capable of inflicting these kinds of consequences needs to be restrained by procedures to prevent their abuse. In other words, the greater the impact of a decision on a person’s rights and interests, the stricter and more exacting a tribunal’s procedures must be.
Resolving the appeals
There were three categories of cases before the Supreme Court in Sabitri Dey. In the first, the appellants did not appear before the tribunal despite the tribunal or the Gauhati High Court recording that they had been served with notice. In those cases, the appellants had been ‘declared foreigners without any contest on their behalf before the tribunal’ – that is, the tribunal had not lawfully examined whether procedural requirements had been met or whether the evidence supported a conclusion that they were foreigners. And so those matters were remanded to the Foreigners Tribunals for fresh consideration (¶33).
In the second category, the appellants did not appear before the tribunal, and the tribunal had not considered the merits of their cases, but the Gauhati High Court had proceeded to consider the merits of their documents and evidence proving citizenship. In those cases, it was the tribunals, not the High Court, that should have undertaken this inquiry, and the High Court’s work could not ‘cure the absence of a proper adjudication before the Tribunal’ (¶38). And so these matters too were remanded to the Foreigners Tribunals.
In the third category, the appellants had taken some steps in their tribunal proceedings, but the proceedings had later proceeded in their absence. In these cases, the Court emphasised that ‘the Tribunal cannot be faulted merely for declining to grant repeated adjournments or for proceeding further in accordance with law’ (¶41) – but that even where alleged foreigners had failed to take part in proceedings, the declarations against them had still been made ‘without a complete adjudication on the material which they seek to place before the statutory forum’ (¶43). These proceedings, too, were remanded to the Foreigners Tribunals for fresh consideration.
Discussion
This was not an activist judgment declaring new constitutional rights out of whole cloth. This is a judgment expressed in restrained, legalistic terms, with a strong emphasis on administrative law and civil procedure. The Court emphasised that its remands were to be granted once, on strict conditions (¶¶33, 44 and 49-52). And it emphasised the limited and legal nature of its task – that it had not ‘examined the merits of the claim of citizenship set up by any of the appellants’, or ‘expressed any opinion on the genuineness, admissibility, relevance or sufficiency of any document relied upon by them’ (¶45). Its task was simply to construe the relevant Act and Order and to determine whether constitutional and statutory requirements for fair procedure had been met.
The Supreme Court’s repeated interventions in the law and policy of citizenship in Assam have had disastrous consequences. As P Baruah and I wrote for The Leaflet after the Supreme Court’s 2024 judgment in In re Section 6A of the Citizenship Act of 1955, ‘the court remains unable or unwilling to restrain itself from intervening in complex policy questions, to recognise the limits of its competence, or to understand that its language and interventions may further inflame intolerance and injustice in Assam’. In Sarbananda Sonowal, it struck down the previous regime for identifying alleged foreigners in Assam because it was too fair to alleged foreigners; under Ranjan Gogoi, it drove the NRC process in an ‘urgent – almost messianic – manner’, asserting control over the process and ‘taking a knife and slashing right through [the] constitutional fabric’; and in In re Section 6A, even after decades of failed interventions in Assam, it continued to insist that the Union Government had failed to prevent ‘persistent immigration in the State of Assam post-March 25, 1971’ and to make new directions for implementing policies to deport ‘illegal immigrants’.
Against this context, Sabitri Dey is a judgment in which the Supreme Court was conscious of the limits of its competence. The Court did not seek to remake the Foreigners Tribunals’ decisions for them, and rejected the Gauhati High Court’s attempts to do so. But it also reasserted that there are things that the Court is uniquely qualified to do: to interpret the relevant governing legislation, to recognise and enforce the constitutional rights of the appellants, and to ensure that state institutions like the tribunals do not transgress the limits of their authority. Of course, the Supreme Court speaks with many voices, and this judgment represents the approach of two and not 34 judges. But it is nonetheless an important shift.
But what next? As explained above, the Foreigners Tribunals lack independence and are deeply unfair. The appellants in Sabitri Dey have been remanded to the Foreigners Tribunals (even those which were previously determined by the IMDT) for rehearing. But they will still need to prove their claims to citizenship through this broken and unjust process.
Sabitri Dey creates an important check on the Foreigners Tribunals’ neglect of their duties when acting ex parte. For the appellants, it represents a second chance to prove that they and their families have long resided in Assam and they are citizens of India. But this judgment illustrates both the potential of administrative law and statutory construction to redress individual abuses and their limits in fixing a broken system. The fundamental failings of the Foreigners Tribunals cannot be solved through piecemeal reform.
