On a recent episode of Last Week Tonight, John Oliver masterfully dissected the horrors of Immigration and Customs Enforcement (ICE) in the US, highlighting how the sheer weight of bureaucratic red tape is weaponized against vulnerable people. It was a harrowing watch. But for Indian legal professionals, it felt entirely too familiar. We have our own parallel: the Foreigners Tribunals (FTs) and the National Register of Citizens (NRC) in Assam.
When you strip away the political rhetoric surrounding illegal immigration in India, you are left with a terrifying legal reality located squarely in a piece of colonial-era legislation: Section 9 of the Foreigners Act, 1946.
The Reversal of Justice: Section 9
In standard criminal and civil jurisprudence across the democratic world, a foundational pillar exists: Ei incumbit probatio qui dicit, non qui negat (the burden of proof lies with the one who speaks, not the one who denies). You are innocent until proven guilty, and the State must prove its allegations against you.
Section 9 of the Foreigners Act completely obliterates this pillar. It explicitly states that if a question arises as to whether a person is or is not a foreigner, the onus of proving that they are not a foreigner lies entirely upon that person.
Imagine being a daily wage laborer whose ancestral home was washed away in a Brahmaputra flood, suddenly being asked to produce 50-year-old land deeds and birth certificates to prove your right to exist in the country. If there is a slight spelling mismatch between your grandfather's voter ID (e.g., "Basir Ali" vs. "Basir Uddin") and your school certificate, the quasi-judicial Foreigners Tribunals can and frequently do ,declare you a foreigner, sending you straight to a detention center.
Quasi-Judicial Power and the Abdul Kuddus Ruling
The power of these tribunals is vast. For a long time, there was a legal debate over whether a Foreigners Tribunal was merely an administrative body or something more. The Supreme Court settled this in the landmark 2019 case of Abdul Kuddus v. Union of India.
The Court ruled that the "opinion" of a Foreigners Tribunal is actually a "quasi-judicial order." This means the doctrine of res judicata applies. Once an FT declares you a foreigner, that decision is legally binding and final. You cannot simply re-apply to the NRC or go to another administrative body. Your only recourse is filing a writ petition in the High Court, a process that requires immense financial resources that the vast majority of the accused simply do not have.
A Ray of Hope: The Md. Rahim Ali Judgment
For years, the Assam Border Police were issuing Section 9 notices indiscriminately, essentially knocking on doors and saying, "We suspect you are a foreigner; now prove you aren't."
However, a critical judicial pushback occurred recently in the Supreme Court judgment of Md. Rahim Ali @ Abdur Rahim v. Union of India (2024). The Supreme Court finally expressed dismay at the casual manner in which the state initiated proceedings. The Court ruled that while the burden of proof is on the accused under Section 9, the State cannot arbitrarily invoke this section without any primary, material basis. The State must first possess some legitimate evidence or conduct a basic inquiry before forcing a citizen into the traumatizing machinery of the FTs.
The Bottom Line
Oliver’s critique of ICE was fundamentally about the lack of due process in administrative detention. The Indian legal fraternity must look in the mirror and ask the same questions. When tribunals pass tens of thousands of ex parte judgments (orders passed when the accused doesn't show up, often because they never received the notice), and the burden of proof is virtually impossible to meet, the legal system ceases to be about justice. It becomes an assembly line for statelessness.
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Abhimanyu Hazarika
PTI
Suraj Gogoi
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