Sanchayita Lahkar

The High Court of Gauhati, Division Bench of Justice Kalyan Rai Surana and Justice Anjan Moni Kalita held that a Foreigners’ Tribunal opinion declaring a person a foreigner warrants no interference in writ jurisdiction where the petitioner “miserably failed” to prove Indian citizenship and the Tribunal’s conclusions show no perversity or error apparent on the face of the record. On that basis, the Gauhati High Court dismissed a writ petition challenging the Tribunal’s opinion, noting that the petitioner could not establish linkage with voters whose names appeared in the 1966 electoral roll and therefore “miserably failed to prove that he is a citizen of India and born out of bona fide citizens.”

The proceeding arose from a writ petition filed under Article 226 of the Constitution, challenging an opinion rendered by a Foreigners’ Tribunal declaring the petitioner to be a foreigner on the ground that he failed to establish Indian citizenship by birth. The petitioner claimed Indian citizenship through his projected father and grandfather and denied the allegation of illegal entry into India.

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Before the Tribunal, the petitioner submitted documentary evidence including certified copies of electoral rolls of 1966 and 1993, NRC legacy data, and Elector Photo Identity Cards relating to himself and his projected father. He also relied on affidavits asserting discrepancies in the spelling of names across documents.

Three defence witnesses were examined. The petitioner examined himself as DW-1, his projected father as DW-2, and an elderly villager as DW-3 who claimed acquaintance with the petitioner’s projected grandfather. These witnesses were cross-examined.

The State authorities contested the claim on the ground that the documents and oral evidence failed to establish linkage between the petitioner and his projected ancestors appearing in the pre-1971 electoral records.

While examining the petitioner’s affidavit evidence, the Court noted that “there is no positive statement regarding the name of his projected father and grandfather.” It further observed that the petitioner relied solely on documents to identify his grandfather and recorded that “the petitioner has no personal knowledge about the name of his grandfather, for which he relies on documents alone, which is quite strange.”

The Court further examined the draft consolidated NRC list dated 30.07.2018 and found that it contradicted the petitioner's own projection of his grandparents. It held, “Therefore, the projection of the petitioner before the learned Tribunal that his grandfather is Abdul Hamid and that his grandmother is Kadbhanu Nesa cannot be accepted at its face value being contrary to the petitioner's own document annexed as Annexure-20 to the writ petition.”

With respect to the projected father examined as DW-2, the Court stated that “apart from exhibiting his EPIC did not make any positive statement that the name of his father has an alias of Hamed Ali and he has not given positive statements to support the contents of the two affidavits sworn by the petitioner.”

The Court noted: “it appears that the petitioner has obtained the certified copy of the voters list of 1966 and is trying to connect the said voters as his projected father and grandfather, which prima facie cannot be accepted in view of the contents of Annexure-20 to the writ petition.”

Assessing the material as a whole, the Court recorded that “Under the circumstances, as the petitioner has failed to demonstrate that he could be connected to the voters whose names appeared in the voters list of 1966 (Ext.A.), petitioner has miserably failed to prove that he is a citizen of India and born out of bona fide citizens.”

The Court added: ““Accordingly, the impugned opinion rendered by the learned Tribunal is not found to be vitiated by any error on the face of the record and the impugned opinion cannot be held to be perverse on the ground of consideration of any extraneous materials or vitiated due to incorrect appreciation of the oral and documentary evidence filed in the case. Moreover, the family, as projected by the petitioner is demolished by the contents of Annexure-20 to this writ petition, as referred hereinbefore,” 

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The Court stated that “the challenge to the impugned opinion dated 06.12.2018… fails and the writ petition stands dismissed. The consequences of the said opinion shall follow. The Registry shall send back the Tribunal’s record along with a copy of this judgment and order, to be made a part of the record by the learned Tribunal for future reference.”

 Advocates Representing the Parties

For the Petitioners: Mr. G. Patowary, Advocate; Mr. D. Hazarika, Advocate; Mr. T. Baruah, Advocate; Mr. R. Phukan, Advocate.

For the Respondents: Assistant Solicitor General of India; Standing Counsel (Foreigners’ Tribunal); Standing Counsel (NRC); Standing Counsel (Election Commission of India); Junior Government Advocate, Assam.

Case Title: Kurban Ali v. Union of India and Others
Neutral Citation: GAHC010049502019

Case Number: WP(C) 1616 of 2019
Bench: Justice Kalyan Rai Surana, Justice Anjan Moni Kalita