"Merely Producing Voter Lists Is Not Enough": Gauhati High Court Dismisses Citizenship Claim Citing Discrepancies, Upholds Tribunal’s Ruling on Post-1971 Migration
Sanchayita Lahkar
The Gauhati High Court Division Bench of Justice Kalyan Rai Surana and Justice Malasri Nandi has dismissed a writ petition challenging an opinion of the Foreigners’ Tribunal. The Court declined to interfere with the Tribunal’s declaration that the petitioner was an illegal migrant who entered India after March 25, 1971. The Court directed that the records of the case be transmitted back to the Tribunal and concluded that no interference was warranted under its writ jurisdiction.
The matter arose from an opinion issued by the Member of Foreigners’ Tribunal No.2, Bongaigaon, dated January 20, 2018, which declared the petitioner to be a post-March 25, 1971 illegal migrant. This opinion was based on a reference made by the Superintendent of Police (Border), Bongaigaon, under reference number BNGN/P.E No.180/2008.
Upon receipt of the Tribunal’s notice, the petitioner contested the reference by filing a written statement asserting her Indian citizenship by birth. She identified herself as the daughter of Late Moksed Ali and Rabeya Khatun, with family roots in village Balarchar, under Abhayapuri P.S., Bongaigaon district, Assam. She claimed that she was married to her cousin, Alimuddin, and that her name was present in the electoral rolls of 1985, 1997, and 2016.
The petitioner submitted various documents in support of her claim, including an NRC certificate of 1951, electoral rolls from 1966, 1970, 1985, 1997, 2006, and 2016, voter ID, a Gaon Panchayat certificate, and a copy of jamabandi reflecting mutation of land in her name. During cross-examination, she reiterated her familial lineage but was unable to explain discrepancies in the records, such as inconsistencies in her grandfather's name and the ages of her parents across multiple electoral rolls.
The petitioner argued that despite sufficient evidence provided through valid public documents under Sections 35 and 74 of the Evidence Act, the Tribunal’s decision was unjust. She claimed that the discrepancies pointed out were minor and immaterial. It was further argued that the investigation was conducted without verifying her residential status, obtaining documents, or conducting a personal inquiry.
The petitioner’s counsel also relied on the Supreme Court judgment in Sarbananda Sonowal v. Union of India (2007) 1 SCC 174, to argue that procedural safeguards are necessary to ensure no genuine citizen is erroneously declared a foreigner.
The respondents, including the Standing Counsel for Foreigners Tribunal, opposed the petition. They submitted that the Tribunal had recorded a plausible finding of fact based on the material presented and that such findings should not be disturbed by the High Court in exercise of its writ jurisdiction.
The Court examined each of the documents provided by the petitioner. It noted that the NRC certificate from 1951 was not admissible as evidence based on existing precedents, including the decision in Abdul Mojid @ Mojid Ali v. Union of India in WP(C) 6090/2016.
Further analysis revealed inconsistencies in the electoral records. For instance, the 1966 voter list showed the petitioner’s father as 30 years old, and her mother as 21. However, the 1985 roll showed their ages as 55 and 50, when it should have been 49 and 40 respectively. The 2006 roll showed the petitioner’s father’s age as 55—lower than in earlier lists—raising doubts about their credibility.
Also noted was the fact that while the petitioner’s inheritance document (jamabandi) showed mutation in the names of Hasem Ali and Aklima Khatun, she never mentioned any brother named Hasem Ali. Similarly, other names associated with her father in various electoral rolls—Arjal and Amzad Hussain—were not identified by her as relatives, raising further doubts about her claim.
The Court recorded, “In Sarbananda Sonowal (Supra), the Apex Court dealing with the burden of proof made the following observation – ‘There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country… All these facts would be necessarily be within the personal knowledge of the person concerned and not of the authorities of the State.’”
The Bench further stated, “Merely by producing some documents like voter list or Gaon Panchayat certificate, one cannot establish her Indian citizenship.”
In assessing the NRC certificate from 1951, the Court noted, “Ext.1 is no evidence in the eye of law.”
Regarding the age discrepancies in the electoral rolls, the judgment recorded, “After 1970, there is a big gap of 15 years and the petitioner did not show any ground why she failed to produce any voter list of her parents though they were alive during that period.”
On the voter list of 2006, the Court pointed out, “It is interesting to note that 2006 voter list reduced the age of the father of the petitioner as 55 years.”
Concerning the inheritance document, the Court stated, “The document submitted by the petitioner vide Ext.12 is post 25.03.1971 document. Apart from that, along with Aklima Khatun, one Hasem Ali…was also mutated…But the petitioner nowhere stated that she has one brother, Hasem Ali by name.”
The Court held that the inconsistencies were material, stating, “Under such backdrop, it is difficult to accept the documents…to prove the citizenship of the petitioner.”
Addressing its own powers under judicial review, the Bench observed, “The High Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal.”
It added, “It is only when the Court/Tribunal exercises a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the writ court…can interfere with the same.”
The Court concluded the judgment by stating, “In the instant case, in view of the aforesaid anomalies as discussed above, we do not find any infirmity in the impugned opinion requiring any interference by this Court exercising its power of judicial review under Article 226 of the Constitution of India.”
It further recorded, “In the result, the writ petition is dismissed. There shall be no order as to costs.”
Finally, the Court directed, “With the above observation, the writ petition is disposed of. Transmit the records to the Tribunal.”
Advocates Representing the Parties
For the Petitioner: Mr. Md S. Hoque, Ms. A. Boruah, Mr. M. Deka
For the Respondents: Mr. J. Payeng (Standing Counsel, FT Matters), Mr. P. Sarmah (Government Advocate), Mr. M. Islam (on behalf of Mr. A.I. Ali, Standing Counsel, ECI)
Case Title: Aklima Khatun v. The Union of India and 6 Ors.
Neutral Citation: 2025:GAU-AS:4816
Case Number: WP(C)/6352/2018
Bench: Justice Kalyan Rai Surana, Justice Malasri Nandi
[Read/Download order]
