Assam NRC- Citizen Can't Be Declared Foreigner Just Because Linkage Is Not Shown With All Relatives : Gauhati High Court

In an astonishing order, a Foreigners Tribunal in Assam had declared a man named Haidar Ali as a foreigner although he had established the link with the names of his father and grandfather entered in the voters lists of 1965 and 1970.

The Tribunal at Barpeta observed that since Haider Ali had failed to establish his linkage with other projected relatives in the voters list. Therefore, the Tribunal held that he had failed to show the linkage properly.

This order of the Tribunal was set-aside by the Guahati High Court observing that it was not necessary for the person to show linkage with all relatives mentioned in the voters list.

The High Court observed that non explanation of the linkage of a person with other names as shown along with his grandparents names in the voters list of 1970 "does not affect the credibility or genuineness to show his linkage with his grandparents."

"What was crucial and required of the petitioner was to prove before the Tribunal was that Harmuz Ali was his father and that his father, Harmuz Ali was the son of Nadu Miya, who were admittedly Indians. The fact that Harmuz Ali was the son of Nadu Miya has been already duly proved by theaforesaid voters lists of 1970 and 1965, genuineness of which was not questioned by the State. Thus, non explanation of relationship of the petitioner with other persons mentioned in the voters list of 1970 cannot be aground for disbelieving the correctness of the entry of the names of the grandparents in the voters list, when the correctness of the entry of the names of the petitioner's father and grandfather was not questioned", the High Court said.

"What is important to note is that the "fact in issue" before the Tribunal was, whether the petitioner was the son of Harmuz Ali and in turn, was the grandson of Nadu Miya, the father of Harmuz Ali, and whether the petitioner could trace his ancestry to the said Nadu Miya through Harmuz Ali, as Nadu Miya was admittedly an Indian who had been casting his vote since 1966. As such, the fact in issue was not whether the petitioner had other relatives also.Thus, non-mentioning of his other relatives as well as that of his father cannot be a ground for disbelieving his testimony and the documents relied upon by the petitioner. Of course, if the petitioner had disclosed in more detail the family tree, it would rather strengthen his claim, but failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable, nor reduce the credibility of his evidence,when there are other corroborating evidences".

Furthermore, the Court also observed that the non disclosure of names of other relatives and non production of relevant evidences, other than what matters, cannot render the evidence of a person unreliable. In view of this the Court held that all the evidences are "corroborative in nature" and failure to disclose all relevant facts "does not ipso facto lead to the inference that his evidence is unreliable."

With these observations, a division bench of Justice N. Kotiswar Singh and Justice Manish Choudhury set aside the Foreigners Tribunal's order which declared Haider Ali as foreigner.

For the purposes of getting entry in the Assam National Register of Citizens, a person has to trace back lineage to persons who were residing in India before the cut-off date of March 24, 1971.

The Court also observed that the revenue records and other documents even though not creating title, are corroborating evidences to show linkage with his father and grandparents.

Case Before the Tribunal

After the notice from the Foreigners Tribunal was sent to Ali on 11th June 2018, written statement was filed by Ali stating that he was declared as foreigner without the authorities making a proper investigation or a field visit. Moreover, it was submitted he was never asked to produce any documents to substantiate his claims.

It was submitted by Ali that his grandparents' names appeared in the voters lists of 1965 and 1970 with their respective house numbers and that his parents name appeared in the voter lists of 2010 and 2018. Furthermore, it was also submitted that the grandfather's property was inherited by his father and other brothers in support of which revenue receipts were produced in the Court.

Accordingly written statement was filed by Ali in the Tribunal showing his electoral identity card issued by the ECI along with that of his father. Other documents including Birth Certificate, Village Certificate and High School records showing his father's details were also placed on record.

The Tribunal after examining the original records held that the petitioner had failed to discharge his burden of proving that he is an Indian as required under Section 9 of Foreigners Act, 1946 and accordingly, declared him to be a foreigner under Section 2(a) of the Foreigners Act, 1946. The reasoning given by the Tribunal was that Ali had failed to prove his link with other persons mentioned in the voter list of 1970 and also with his father and grandparents.

High Court Observations

1. Non Explanation of Linkage Does Not Affect Credibility To Show Link with Grandparents

The High Court after distinguishing with the reasoning of the Tribunal observed thus:

"In our opinion, non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voters list of 1970 does not affect the credibility or genuineness of the evidence in the form of voters list of 1970, to show the linkage of the petitioner with his grandparents."

Observing that the voter lists show the names of his grandparents which proved them to be Indian citizens, the Court held that Ali's father is clearly shown to be the son of his grandparents in view of the voter lists of 1965, 1970 and 1971.

"Thus, non explanation of relationship of the petitioner with other persons mentioned in the voters list of 1970 cannot be a ground for disbelieving the correctness of the entry of the names of the grandparents in the voters list, when the correctness of the entry of the names of the petitioner's father and grandfather was not questioned. Thus, the plea of the petitioner that his father, Harmuz Ali was the son of Nadu Miya stands proved." The Court observed at the outset.

2. Observations on Functioning of the Tribunal

Noting that a written statement under the provisions of CPC is a defence put by the defendant to respond to the allegations, the Court observed that in cases of proceedings before the Tribunal, no such plaint or charge is filed except for informing the said proceedee through a "mere notice or summon" issued by the Tribunal alleging that he is not an Indian citizen.

"From the records, it is also seen that after issuing summons to the proceedee or before issuing summons to the proceedee, the Tribunal does not examine any of the persons who had made the reference or who had conducted the investigation against the proceedee to hold that the proceedee is a foreigner. Thus, the proceedee is totally in dark as to how he came to be considered to be a foreigner and not an Indian." The Court observed.

Furthermore, it was observed that all opportunities should be given to the proceedee to enable him to produce all the documents in his possession "even at later stage" to substantiate his claim that he is an Indian citizen.

Noting that the names of other relatives of Ali's father were brought into notice only during the cross examination, the Court observed thus:

"This disclosure does not in any way, in our view, shake the credibility of the evidence of the proceedee merely because the same was not disclosed in the written statement or in his evidence-in-chief. On the contrary, this disclosure fortifies his evidence and shows the truthfulness of the witness by not hiding any relationship. The disclosure of this information does not contradict any previous statement for it was never stated by the petitioner nor his father that his father did not have any other siblings."

3. Non disclosure of Names of Other Relatives Cannot Render his Evidence Unreliable

The Court observed that the fact in issue before the Tribunal was with regards to his ancestry linkage and not whether he had other relatives also. Therefore, the Court held that non-mentioning of his other relatives as that of his father cannot be a ground for disbelieving his testimony and the documents relied upon by the petitioner.

"All the evidences are corroborative in nature and failure to disclose all the relevant facts does not ipso facto lead to the inference that his evidence is unreliable. The more evidences one adduces, the better for him. But there is no law nor dictum that if the proceedee does not disclose the names of all the other relatives, other than what matters and does not produce all the relevant evidences other than what matters, his evidence cannot be believed." The Court observed.

Furthermore, the Court while noting that the practice followed so far is that nothing is furnished to the proceedee by the State except a notice or summon and that the onus of proof under sec. 9 of the Foreigners Act 1946 is also upon the proceedee, observed that:

"The Tribunal does not direct the proceedee to produce any document. It is for the proceedee to produce such evidences and documents in support of his claim that he is an Indian. The more credible evidences he produces, the better for him. Yet, production of less evidences cannot necessarily lead to rejection of the claim of the proceedee nor drawing of any adverse inference."

4. Revenue Records are Corroborating Evidences even if No Title is Created

The Court also went ahead to observe:

"We are of the opinion that though the Jamabandi and other revenue receipts cannot create the title, nevertheless, these are corroborating evidences to show that the petitioner's father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971, and as such they were residents of Assam."

Relying on the documents produced by the petitioner in detail, the Court observed that the standard of proof in a proceeding under the Tribunal is preponderance of probability and not proof beyond all reasonable doubt and if the petitioner has been able to prove that the names of his father and grandfather were shown in 1966 and 1971 thereby showing his linkage with them on the strength of voters lists after 1971, the Tribunal cannot reject the claim of the petitioner, merely because some documentary evidence were not produced.

In view of the aforesaid observations, the Court allowed the petition and set aside the Tribunal's order dated 30th January 2019 by holding Ali to be an Indian and not a foreigner.

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