Supreme Court Allows Woman Declared As Foreigner To Seek Review In Gauhati High Court

The Supreme Court on Monday granted liberty to a woman, who was declared as a foreigner by a Foreigners Tribunal in Assam, to file a review petition in the Gauhati High Court against the judgment which upheld the Tribunal order.

A bench headed by the Chief Justice of India also permitted the petitioner to approach the Supreme Court again, challenging the High Court judgment, in case she fails in the review petition.

The petitioner was a woman named Jasmin Begum @ Jesminara Begum, who was declared as a foreigner by Foreigners' Tribunal, Morigaon, on January 25, 2019.

The Tribunal held that she could not trace back her ancestry to Indian citizens residing in Assam before March 25, 1971 (the cut-off date set for eligibility for inclusion in the National Register of Citizens).  The proceedings against her were initiated on a reference made by Superintendent of Police, Morigaon, in 1998.

The Tribunal held that the eleven documents produced by her did not prove her Indian citizenship. She said that her parents' names were entered in the voters list of 1965. She referred to the name 'Mazeda Begum' in the voters' list of 1965 as her mother's name. But the Tribunal did not act on the voter's list entry saying that the petitioner, in her oral evidence, cited her mother's name as 'Mazeda Sultana Begum', and not as 'Mazeda Begum'. 

The Tribunal also did not accept the school leaving certificate produced by the petitioner saying that the Headmistress of the school was not examined. It rejected the oral evidence of the petitioner's uncle and husband by saying that they are not supported by evidence.

The Tribunal held that Jasmin Begum "miserably failed to establish her link with her father and mother" and declared her to be a "foreigner" who entered India after March 25, 1971.

The District Authority was directed to take steps to deport her to the immediate territory(Read the complete tribunal order here).

The Near Impossible Burden Of Proof For Citizenship

The writ petition filed against the Tribunal order was dismissed by the Gauhati High Court on September 25, 2019. A division bench of Justices Manojit Bhuyan and Ajith Borthakur held that there was "no infirmity in the findings and opinion recorded by the Tribunal".

In the special leave petition filed in the Supreme Court against the HC judgment, Advocate Fuzail Ahmad Ayyubi argued that the Tribunal took a "hyper-technical" approach by rejecting the petitioner's claim merely on the ground that she mentioned her mother's middle name in her oral evidence, which was not present in the voter's list. It was also contended that the petitioner's father's name was 'Abdul Kadir', which was present in her documents. But the Tribunal did not refer to this on the ground that linkage with her mother was not established.

On Monday, Senior Advocate Dr Menaka Guruswamy, appearing for the petitioner, submitted before the Supreme Court that the Tribunal order suffered from "apparent errors" and that petitioner's parents are included in the voter's list.

The bench said that it will grant liberty to the petitioner to seek review of the judgment. On that basis, the writ petition was withdrawn.

Click here to read/download the order