The Gauahti High Court has dismissed a writ petition challenging the order of a Foreigners Tribunal declaring a person to be foreigner by observing that the burden of proving citizenship was on the person making the claim.

The Court referred to Section 9 of the Foreigners Act 1946 for this observation and held that the petitioner could not prove linkage to any ancestors who were residing in Assam before March 24, 1971, the cut-off date prescribed under Assam Accord.

On this basis, the division bench comprising Justice Manojit Bhuyan and Justice Parthivjyoti Saikia, dismissed the writ petition filed by one Nur Begum, who had been declared to be foreigners/illegal migrants of post 1971 stream by the Foreigners' Tribunal.

The petitioner, Nur Begum, whose birth year was claimed to be1986, had produced eight documents to establish her case. The petitioner projected one Raju Hussain as her father, whose name was included in the 1997 voters list. She also produced voters list of 1966, in which the name of her projected grandfather Jenurathdin was included. School leaving certificate issued in 2000 was also produced, which reflected the name of her father as Raju Hussain. There was also a caste certificate issued by Government in 2014, certifying petitioner to be the daughter of Raju Hussain. Elector Photo Identity Card of one Jahorun Hussain, projected mother of the petitioner, was also produced. The projected mother also gave oral testimony.

With regard to the school certificate and other certificates issued by the local authorities, the high court held that the contents of such documents have to be proved through the legal testimony of the Issuing Authority. It held,

"All the certificates rendered itself as inadmissible in evidence, inasmuch as, the authors were not examined to prove the Certificates and the contents thereof. Although an argument can be made that since the school in question at Exhibit- 1 is a provincialised school and on that account the Certificate is admissible in evidence, we may observe that a document which is found admissible is not the end of the matter. The content of the same has to stand proved through the legal testimony of the Issuing Authority."

Further, with regards the copies of voter lists that contained names of the Petitioner's family members, the high court held that reflection of a name in a document is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entity by means of cogent, reliable and admissible document/evidence.

It observed,

"In the present case the Headmaster of the school in question was not examined to prove the contents of the Certificate. The Voter Lists of 1997, 1966 at Exhibits-4 and 5 reflects the names of the projected grandmother, father and grandfather of the petitioner. At this stage we would observe that reflection of a name in a document is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entity by means of cogent, reliable and admissible document/evidence."

The Court also discarded the oral testimony given by the projected mother of the petitioner by observing :,

"In a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship."

On this note, it held,

"At the time of giving evidence the DW-2 did not produce any documents by way of identification proof…The evidence of DW-2, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected grandfather, grandmother and father. The petitioner utterly failed to prove her linkage to Indian parents relatable to a period prior to the cut-off date of 25.03.1971 through cogent, reliable and admissible documents."

The Court added that the burden of proving citizenship was on the proceedee, and the petitioner had failed to discharge the same :

"As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected parents and/or the grandfather", the bench observed.

Case Details:

Case Title: Nur Begum v. Union of India & Ors.; Sahera Khatun v. Union of India & Ors.

Case No.: WP(C) 1900/2019; WP(C) 7482/2019

Quorum: Justice Manojit Bhuyan and Justice Parthivjyoti Saikia

Appearance: Advocates Md. A Matlib and HRA Choudhury (for Petitioners); Advocates G. Hazarika, B. Das, A. Kalita, U. Das and A. Verma (for Respondents)

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