“Burden of Proving Citizenship Was Never Discharged”: Gauhati High Court Upholds Foreigners Tribunal's Declaration of Woman as Foreigner
Isabella Mariam
The Division Bench of the Gauhati High Court, comprising Justice Kalyan Rai Surana and Justice Kardak Ete, dismissed a writ petition that challenged the findings of the Foreigners Tribunal No.5th, Goalpara, which had declared the petitioner to be a foreigner who entered India after March 25, 1971. The bench upheld the tribunal’s decision and vacated the interim bail granted to the petitioner earlier in 2018.
The Division Bench stated that the petitioner failed to establish any substantive link proving Indian citizenship and did not discharge the burden of proof as mandated under Section 9 of the Foreigners Act, 1946. It further held that the petitioner’s documents were not supported by authenticated records and did not credibly demonstrate lineage from persons named in earlier electoral rolls.
The petitioner challenged the Foreigners Tribunal's opinion dated 12.02.2018 in FT Case No. FT/5/131/MA/2016, Reference Case No. 582/08. The tribunal had declared the petitioner to be a foreigner belonging to the post-1971 stream. In her written statement filed on 01.08.2016, the petitioner claimed to be an Indian citizen by birth, born in the year 1975 at village Ramapara Pather in the then undivided Karup District. She named her parents as Haran Sarkar and Gokuljan Nessa and asserted that her name appeared in the voters list of 2005 and 2016.
To support her claim, she submitted voter lists of 1966 and 1970 (Exhibits A and B), allegedly containing her parents' names, a landholding certificate dated 26.07.2016 (Exhibit C), and a link certificate dated 19.06.2015 issued by the Secretary of 89 No. Ramapara Gaon Panchayat. She also presented evidence from a witness, Samed Ali (DW-2), who claimed to be her maternal nephew.
The petitioner asserted that after marriage to Abul Hussain, she relocated multiple times within the Goalpara district, which contributed to her delayed entry in local electoral rolls. She contended that these movements, coupled with her illiteracy and her husband’s business responsibilities, prevented her from registering earlier.
The counsel for the petitioner argued that the link certificate was duly issued and countersigned by the Block Development Officer, and its authenticity was never questioned by the State. Furthermore, the petitioner relied on judicial precedent in Md. Anuwar Hussain @ Md. Anowar Hussain v. Union of India & Ors., 2014 Legal Eagle (Gau) 986, to assert that minor discrepancies in parental names should not lead to adverse findings.
The State, represented by the Standing Counsel for FT matters, refuted these claims, asserting that the oral testimony was insufficient to prove citizenship. The State further contended that neither the petitioner nor her witness exhibited any primary link document to establish the claimed parental lineage. The State also relied on the decisions in Rupali Bibi v. Union of India & Ors., WP(C) 3917/2016, Zelekha Khatun v. Union of India, (2023) 0 Supreme (Gau) 1069, and Sabir Ahmed v. Union of India & Ors., 2023 (1) GLT 155 to assert that the burden of proof lies solely on the proceedee.
The court made detailed observations on the evidence and legal provisions governing the burden of proof in foreigner determination proceedings. Referring to Section 9 of the Foreigners Act, 1946, the court stated: "The burden of proving that he is not a foreigner is upon such person."
The court found that only three documents had been exhibited by the petitioner: voters lists of 1966 and 1970 (Exhibits A and B), and the landholding certificate (Exhibit C). It noted that the petitioner failed to introduce any official documentation substantiating her claimed parental relationship to the individuals named in those documents.
The judgment recorded: "When voter lists are in public domain and anyone can obtain certified copy of any voter list, it is difficult to accept that two names appearing in the voters list of 1966 and 1970 are the projected parents of the petitioner in the absence of any other document being proved."
Further, the court stated that the link certificate submitted by the petitioner was not exhibited, nor was its issuing authority examined. It observed: "Merely because the author of the document was not examined, the link certificate... could not have been discarded," but clarified that no effort was made by the petitioner to summon the Gaon Panchayat Secretary.
On the petitioner’s claim of residence and landholding, the court held that the landholding certificate was secondary evidence and lacked authentication through revenue records. It stated: "The land holding certificate is not a document backed by any provision of the Assam Land and Revenue Regulation, 1891 or any other law for the time being in force."
The appearance of the DW-2, allegedly the petitioner's nephew, was deemed sudden and unsubstantiated. The court observed: "The DW-2 did not prove any document regarding his own identity and did not prove existence of any relationship between the petitioner and his own mother."
Quoting from Bijoy Das v. Union of India, 2018 (3) GLT 118, the court reiterated that oral evidence alone is insufficient in proceedings under the Foreigners Act, 1946.
Finally, citing the precedent laid down in Sarbananda Sonowal v. State of Assam & Ors., (2005) 5 SCC 665, the bench stated that the IMDT Act and its procedures were struck down for failing to meet constitutional mandates under Article 355. It reaffirmed that police officers and the State are not obligated to establish prima facie foreigner status when the burden is legislatively assigned to the individual.
The court concluded that the petitioner had failed to establish her Indian citizenship and upheld the tribunal’s finding that she is a post-1971 entrant. The order read: "Accordingly, this writ petition fails and the same is dismissed."
Further, the court directed: "The interim order and bail granted by order dated 04.04.2018, stands vacated and revoked."
The judgment allowed for actions based on the Foreigners Tribunal’s opinion to proceed in accordance with law.
Advocates Representing the Parties
For the petitioner: Mr. I.H. Saikia, Advocate
For the Respondents: Mr. G. Pegu, CGC, Mr. J. Payeng, Standing Counsel, Mr. H.K. Hazarika, Government Advocate
Case Title: Sonabhan Bewa @ Sona Khatun v. The Union of India & 6 Ors.
Neutral Citation: GAHC010053992018
Case Number: W.P.(C) 1975 OF 2018
Bench: Justice Kalyan Rai Surana, Justice Kardak Ete
[Read/Download order]
