Safiya Malik

The Gauhati High Court has dismissed a writ petition challenging the opinion of the Foreigners’ Tribunal that declared an individual a foreigner. The petitioner sought relief under Article 226 of the Constitution of India, contesting the tribunal’s determination of her citizenship status. The court upheld the tribunal’s findings and ruled that the petitioner failed to provide conclusive evidence to establish her Indian citizenship.

The petitioner, a resident of Biswanath district, Assam, challenged the opinion dated November 10, 2020, issued by the Foreigners’ Tribunal, Tezpur 5th, which declared her a foreigner who entered India after March 25, 1971. The case arose from proceedings initiated under the provisions of the Foreigners Act, 1946, aimed at identifying and addressing cases of illegal immigration in Assam.

The petitioner contended that she was born and raised in Balidubi village under Behali Police Station (now Ginjia) in Biswanath district. She submitted that her father, Mukshed Ali, was a recorded voter since 1959 and possessed land and revenue records. She argued that after her marriage, her name appeared in the voter list alongside her husband, Majibar of Niz Baghmari village, where they cast their votes.

The petitioner’s brother, Syed Badshah, testified as DW-2, confirming their familial relationship. His voter registration records for 2016, 2017, and 2018 reflected their father’s name. Supporting documents, including revenue records, voter lists, and a gaonburah certificate, were presented to establish the petitioner’s citizenship by birth. Additional witnesses, including other relatives and village residents, also testified in support of the petitioner’s claims.

The respondent’s counsel countered that there were discrepancies in the petitioner’s claims, particularly inconsistencies in witness testimonies and documentary evidence. The tribunal noted contradictions in the number of siblings, variations in names, and inconsistencies regarding the petitioner’s residence history. The respondents argued that the petitioner failed to meet the burden of proof under Section 9 of the Foreigners Act, 1946, which places the responsibility on the individual to establish their Indian citizenship.

The tribunal reviewed all documentary evidence submitted, including electoral records, land revenue documents, and birth records. The tribunal observed that while the petitioner claimed to have provided sufficient proof, many of the documents were either uncertified or lacked direct linkage to her as an individual. Several electoral rolls submitted included names of persons with similar names but did not conclusively establish that they referred to the petitioner or her immediate family members.

The High Court examined the tribunal’s reasoning and found significant contradictions in the petitioner’s claims. The court observed:

“The petitioner has failed to prove the place of residence where she was born and subsequently resided along with her parents in a particular village and her present place of residence.”

The court noted discrepancies in witness testimonies, particularly regarding the petitioner’s familial details and residence. It recorded that DW-1 stated her father had six sons and three daughters, while DW-2 claimed their father had eight children. Additionally, DW-1 mentioned that her father’s name was Akbar, whereas the 1959 voter list recorded it as Ajimuddin. Such inconsistencies, the court stated, cast doubt on the petitioner’s claims.

Regarding documentary evidence, the court held:

“Merely by producing some documents like voter lists of other persons claimed to be one’s father or brother, one cannot establish Indian citizenship.”

Citing the Supreme Court’s ruling in Sarbananda Sonowal v. Union of India (2005) 5 SCC 665, the High Court reiterated that the burden of proof lies on the petitioner to establish citizenship. The judgment stated that mere submission of documents does not amount to their proof unless duly corroborated by independent and reliable evidence.

The court further observed that the petitioner had never exercised her voting rights, despite claims of being a longstanding resident. The absence of earlier voter registration records and the petitioner’s inability to produce crucial documents from prior years weakened her case.

The tribunal had previously noted that while the petitioner’s brother’s electoral records showed he was eligible to vote from 1995, no documents were submitted from 1995 to 2016. The High Court found this omission significant and upheld the tribunal’s findings.

The court also took note of the contradictions in the petitioner’s assertions regarding the movement of her father. In some statements, it was claimed that her father moved from Balidubi to Niz Baghmari after 1959, while in other statements, it was said that he lived in different locations due to flood-induced displacement. This raised further doubts regarding the consistency of the petitioner's version of events. Additionally, witness testimonies regarding the family’s land ownership were not supported by official land revenue records submitted before the tribunal.

The High Court concluded that judicial review under Article 226 is limited to correcting errors apparent on the face of the record and does not extend to re-evaluating factual determinations made by the tribunal. It stated:

“The High Court can interfere with the opinion of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is an error apparent on the face of the record.”

Finding no such grounds for interference, the court dismissed the writ petition, ruling that the tribunal’s opinion was well-reasoned and supported by evidence.

The court also directed that the records be transmitted back to the Foreigners’ Tribunal for further necessary action in accordance with the law. No costs were imposed on either party.

Case Title: Mazitan Nessa @ Mazidan Nessa v. The Union of India & Others
Case Number: WP(C)/6889/2024
Bench: Justice Kalyan Rai Surana, Justice Malasri Nandi

[Read/Download order]