Documents To Prove Citizenship Not Admissible In Evidence Unless Proved By Testimony Of Issuing Authorities : Gauhati HC [Read Judgment]

The division bench comprising Justice Manojit Bhuyan and Justice Parthivjyoti Saikia was considering a writ petition filed by one Rabia Khatun, challenging the order passed by Foreigners Tribunal Sonitpur on May 16, 2017 declaring her to be a foreigner in the post-1971 stream as per the Assam Accord.

To prove her citizenship, she had produced 4 documents, viz. the Elector Photo Identity Card, Electoral Roll of 1965 in the name of her projected grandfather, a Marriage Certificate issued in her name and a Gaonburah Certificate issued in her name.

These documents were held to be inadmissible in evidence by the Court. With regards the Elector Photo Identity Card the Gauhati High Court has already held in Munindra Biswas v. Union of India & Ors., WP (C) No. 7426/2019 that it is not a conclusive proof of citizenship and it cannot be considered while assessing whether a person is a foreigner under the Assam Accord of 1985.

With regards the Electoral Roll of 1965 the court held that "no voter lists were produced and exhibited showing the name of the petitioner with her projected father or grandfather as voters."

It held,

"Besides the documents above, the petitioner did not present for examination any independent witnesses in support of her case. The Electoral Roll of 1965 at Exhibit-B only reflects the name of the petitioner's projected grandfather. However, no voter lists were produced and exhibited showing the name of the petitioner with her projected father or grandfather as voters. The Elector Photo Identity Card at Exhibit-A cannot be treated as a valid document to prove citizenship in law."

The remaining two documents, i.e. the Marriage Certificate and the Gaonburah Certificate were also held to be inadmissible by the court, for the same were not proved by way of legal testimony of the issuing authority.

"Other documents like Marriage Certificate at Exhibit-C and the Gaonburah Certificate at Exhibit-D issued by the same Gaonburah of village 1 No. Jia Gabhoru, 2 No. Jia Gabhoru, Rikimari Lat, rendered itself as inadmissible in evidence, inasmuch as, the said Certificates and the contents thereof did not stand proved through the legal testimony of the issuing authority," the court held.

It further observed that the petitioner had not made any efforts to produce any admissible document or voter list prior to the cut-off date i.e. 25.03.1971, showing existence of her projected father in Indian soil.

Accordingly, it was held that the Petitioner failed to discharge the burden to prove citizenship as per Section 9 of the Foreigners Act and the writ petition came to be dismissed.

"This is a clear case where the petitioner utterly failed to prove linkage and to discharge the burden, as required of her, under section 9 of the Foreigners Act, 1946…the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected father and/or grandfather," the court concluded.

In a similar case titled Sahera Khatun v. Union of India & Ors., WP (C) 7482/2019, the Gauhati High Court had declared a woman to be a foreigner by holding that she had failed to prove her school certificates by the testimony of the issuing authority.

Case Details:
Case Title: Rabia  Khatun v. Union of India
Case No.: WP (C)  No. 6369/2019
Quorum: Justice Manojit Bhuyan and Justice  Parthivjyoti Saikia
Appearance: Advocate B Chowdhury (for Petitioner); Advocates G. Hazarika, A. Kalita, B. Das and U. Das (for Respondents)

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