Abu Talha 

Third year law student at Aligarh Muslim University 

Introduction

Citizenship is ordinarily thought of as a status one simply has. In large parts of India today, particularly in Assam, it is instead something one must repeatedly prove, on demand, against the standing threat of being declared a "foreigner" and rendered, in effect, stateless. Over the past two years the Supreme Court of India has delivered two judgments that go to the heart of this problem: the Constitution Bench decision upholding Section 6A of the Citizenship Act, 1955, and the ruling in Md. Rahim Ali v. State of Assam, which scrutinised how the burden of proving citizenship actually operates on the ground. Together, they frame the central legal question this article addresses: when the State casts the burden of proving citizenship onto the individual, what constitutional safeguards must accompany that burden before it can be fairly invoked, and has India's citizenship-determination machinery in Assam met that standard?

The Constitutional and Statutory Framework

The Constitution did not enact a permanent, self-executing code of citizenship. Articles 5 to 11 dealt only with citizenship at the commencement of the Constitution and expressly left Parliament free to make further provision by law[1]. Parliament exercised that power through the Citizenship Act, 1955, which lays down the ordinary routes to citizenship; by birth, descent, registration, naturalisation, and incorporation of territory. Assam, however, has long been treated as a special case. Large-scale migration from East Pakistan, and later Bangladesh, before and after the 1971 war led to a six-year agitation led by the All Assam Students' Union, culminating in the Assam Accord of 1985[2]. To give legislative effect to the Accord, Parliament inserted Section 6A into the Citizenship Act[3]. This provision drew three lines in time: those who entered Assam from the specified territory before 1 January 1966 were deemed citizens; those who entered between that date and 24 March 1971 could acquire citizenship only after being detected, registering, and completing a ten-year disability on voting rights; and anyone entering on or after 25 March 1971 was, and remains, an illegal migrant liable to detection and expulsion under ordinary law. Section 6A thus created, uniquely for one State, a statutory mechanism in which citizenship depends not merely on birth or descent but on documentary proof of a date of entry decades in the past.

The machinery for enforcing this scheme lies substantially outside the ordinary courts. The Foreigners Act, 1946 empowers the government to refer suspected cases to quasi-judicial Foreigners' Tribunals, and Section 9 of that Act places the burden of proving that one is not a foreigner squarely on the person proceeded against, notwithstanding the ordinary rule under the Indian Evidence Act that the person alleging a fact must prove it.

This reversal of the ordinary evidentiary burden[4] is the fulcrum on which the entire Assam citizenship-determination regime turns, and it is this reversal that has generated the sharpest disputes: a person whose name appears on a decades-old electoral roll, whose parents are dead, and whose documents were prepared by semi-literate enumerators in a language not their own, must nonetheless discharge a legal burden that can determine whether they are permitted to remain in the only country they have ever known.

Judicial Trajectory from Sonowal to the National Register of Citizens

The Supreme Court's engagement with this framework has been long and, at times, contradictory. In Sarbananda Sonowal v. Union of India, a three-judge Bench struck down the Illegal Migrants (Determination by Tribunals) Act, 1983; a special Assam-only law that had placed the burden of proof on the State rather than the individual, holding that it had made detection and deportation of illegal migrants virtually impossible and amounted to "external aggression" within the meaning of Article 355 of the Constitution[5]. The Court directed that the general Foreigners Act regime, with its reversed burden of proof, be applied to Assam instead. When the Central Government subsequently tried to carve out a separate, weaker Tribunal order for Assam, the Court struck that down too, in a follow-up ruling[6], insisting on parity of enforcement. The cumulative effect of the Sonowal litigation was to entrench, as the only constitutionally acceptable framework, one in which the individual bears the onus of proving citizenship before a Tribunal, with comparatively thin institutional safeguards.

It was against this backdrop that the National Register of Citizens (NRC) for Assam was updated under the Supreme Court's direct supervision, pursuant to a public interest litigation filed by the non-governmental organisation Assam Public Works[7]. Special rules were framed requiring residents to prove linkage to the NRC of 1951 or to electoral rolls up to the midnight of 24 March 1971[8]. When the final list was published on 31 August 2019, of roughly 3.3 crore applicants, over 19 lakh people, including, notoriously, relatives of a former President of India  found themselves excluded[9], each now required to establish citizenship afresh before a Foreigners' Tribunal, with the same reversed burden of proof described above. The scale of exclusion, and the arbitrariness with which family members of otherwise-included persons were left out, exposed the practical fragility of a system that asks ordinary people to produce documentary proof of ancestry across half a century of floods, fires, and bureaucratic indifference.

2024: The Supreme Court's Twin Interventions

Two thousand and twenty-four supplied the most significant judicial statements yet on this framework. First, in In Re: Section 6A of the Citizenship Act 1955, a five-judge Constitution Bench finally answered the question left open since 2014: is Section 6A itself constitutional? By a 4:1 majority, the Court held that it was[10]. Chief Justice Chandrachud, writing for himself and Justices Surya Kant and Manoj Misra, reasoned that Section 6A does not retrospectively alter the citizenship already vested by Articles 6 and 7, but instead confers citizenship from a later date on persons those Articles do not cover, so no conflict with the constitutional scheme arises[11]. The majority also rejected the argument that Section 6A violated Article 29(1)'s protection of minority culture, holding that the petitioners had not shown how the provision prevented the Assamese people from taking active steps to preserve their own culture. Justice Pardiwala alone dissented, applying what he termed a doctrine of temporal unconstitutionality: a provision valid when enacted in 1985 could become arbitrary with the passage of decades if the machinery meant to give it a defined, temporary character; the tribunals meant to detect and process the 1966–71 cohort, proved perennially inadequate[12]. The majority itself was not blind to this concern; it directed the Union Government to complete border fencing, strengthen the Tribunal network, and place the entire enforcement mechanism under continuing judicial monitoring.

Second, and in some ways more consequential for ordinary litigants, the Court decided Md. Rahim Ali @ Abdur Rahim v. State of Assam. Rahim Ali had been declared a foreigner by the Nalbari Tribunal in an ex parte order in 2012; the Gauhati High Court dismissed his challenge in 2015; a fresh Tribunal hearing directed by the Supreme Court in 2017 again went against him. He died in December 2021 still classified a foreigner. In July 2024, more than two years after his death, the Supreme Court set aside every one of those orders and declared him, retrospectively, an Indian citizen[13]. The judgment did not disturb Section 9's reversed burden of proof, which it acknowledged as settled law following Sonowal I[14]. Instead, it held that the burden only shifts to the individual once the State has placed before them a specific, non-vague allegation supported by some material; a "mere allegation" mechanically reproducing statutory language cannot trigger the reversal[15]. The Court also held that minor discrepancies in spelling and dates across documents prepared in different scripts and by different officials over decades cannot, by themselves, be treated as proof of foreign origin, an evidentiary reality familiar to anyone who has compared an Assamese voter list with an English-language school certificate.

 Weighing Security, Federal Anxiety, and Due Process

Read together, these decisions reveal a Court trying to hold two propositions in tension without abandoning either. On one hand, the Sonowal line of authority and the majority in the Section 6A reference both treat unchecked migration into a border State as a legitimate and serious constitutional concern, one that justifies a statutory scheme placing the burden of proof on the individual rather than the State, and one that justifies Assam-specific rules that do not apply elsewhere in India. On the other hand, Rahim Ali insists that this reversed burden cannot become a license for administrative caprice: it must be preceded by particularised grounds, supported by material the person can actually contest, and it must not penalise the ordinary imperfections of India's civil registration system.

This is, in substance, the constitutional guarantee of Article 14 doing quiet work inside a scheme that Article 14 has already been held, at the level of legislative competence, not to violate[16]. A law can be facially constitutional and yet be administered in a manner that is not, and it is at the level of administration, through Tribunals adjudicating individual cases and High Courts exercising writ jurisdiction over them, that most of the real conflict over Indian citizenship is presently being fought. The Abdul Kuddus ruling[17], holding that Tribunal opinions are quasi-judicial and operate as res judicata, has proved to be an important, if imperfect, safeguard in this respect: once a person has been found to be a citizen after a full hearing, the State cannot simply refer the same person to a fresh Tribunal on the same allegations, a protection that later Gauhati High Court and Supreme Court orders have had to reiterate against precisely such repeat harassment.

There is also a national dimension to this otherwise Assam-specific story. The Citizenship (Amendment) Act, 2019, which created an expedited path to citizenship for specified religious minorities from three neighbouring countries who entered India by the end of 2014, was enacted partly to address anxieties about the fate of persons excluded from processes like the NRC, and it remains contested in litigation and public debate on grounds of the differential religious classification it draws. A nationwide NRC has been proposed at various points but not undertaken; the Assam experience its cost, its administrative errors, and the years of litigation it has generated for a population far smaller than India's; is frequently invoked, on both sides of that debate, as a cautionary precedent.

Conclusion

The dispute over proof of citizenship in India is not, at its core, a dispute about who Parliament may recognise as a citizen; that legislative authority is settled and was reaffirmed in 2024. It is a dispute about process, about what evidentiary and procedural protections must surround a scheme that asks an individual to prove, often across three or four generations and through documents never designed for the purpose, that they belong to the country of their birth. The Supreme Court's 2024 decisions suggest an emerging, if still incomplete, answer: the reversed burden of proof under Section 9 of the Foreigners Act is constitutionally permissible, but only when it is triggered by specific, disclosed grounds, weighed against a realistic standard of probability rather than documentary perfection, and subject to continuing judicial oversight of the Tribunals that apply it. Whether that answer is administered consistently by more than a hundred Foreigners' Tribunals functioning across Assam, largely outside public scrutiny, will determine whether the promise of Rahim Ali reaches the many people still waiting, as Rahim Ali himself did, for a verdict that may arrive only after it is too late to matter to them.