Must Be Given All Opportunities To Produce Any Relevant Material Indicating Her Indian Citizenship: Gauhati High Court Grants Relief To Woman

Ordering the Foreigners Tribunal to pass a reasoned order in her case, the Gauhati High Court recently allowed a woman to produce any such person for making deposition before the Tribunal, who may have the knowledge that she is the daughter of the person whose name is mentioned in the voter’s list of 1966 as per the certificate issued by Gaon Panchayat Secretary.

The division bench of Justice Achintya Malla Bujor Barua and Justice Robin Phukan observed that when the petitioner is required to discharge her burden under Section 9 of the Foreigners Act, 1946 that she is an Indian citizen, she must be given all opportunities, as may be available, to produce any relevant material which may indicate that she is an Indian citizen.

"Usually the method adopted is that a person is identified from a given voters’ list which may indicate that the said person is an Indian citizen and thereafter prove that the person concerned is the father of the proceedee," the court said.

During the course of the proceedings before the Tribunal, the petitioner had presented a certificate from the Gaon Panchayat Secretary dated January 18, 2023 and made a prayer that the said certificate be accepted. However, the Tribunal rejected the prayer by arriving at its conclusion that the certificate of the Gaon Panchayat Secretary could not be treated as a new discovery.

While the court said it sees no reason not to accept the view of the Tribunal, it said a certificate depicts the existence of a fact which is vouched upon by the person issuing the certificate.

"In other words, the existing fact that may be reflected in a certificate would have to be within the knowledge of the person who issues the certificate meaning thereby, either the person concerned is a custodian of a public record from which the information can be derived or the person concerned may have personal knowledge about the existence of the fact," said the court.

The court noted that the petitioner relied upon the voter’s list of 1966 of village Numberpara Part III under Srijangram Circle in the present Bongaigaon district which contains the name of Abubakkar son of A. Sukur at SI. No. 3. According to the petitioner, that Abubakkar son of A. Sukur is her father.

"If the petitioner intends to prove through the certificate of the Gaon Panchayat Secretary that Abubakkar of the voters’ list of 1966 of village Numberpara Part III is the father of the petitioner, the core requirement would be to examine the person who had issued the certificate to depose before the Tribunal firstly, as to the source of his knowledge and secondly, that as per such knowledge Abubakkar of the voters’ list of 1966 of village Numberpara Part III is the father of the petitioner," the court said.

The court further said that irrespective of a certificate, the deposition can be made by any person, including that of a Gaon Panchayat Secretary, provided the person concerned has appropriate knowledge about the existence of the fact that Abubakkar of the voters’ list of 1966 of village Numberpara Part III is the father of the petitioner.

"Such knowledge may flow either from any public record that may be maintained by the person including the Gaon Panchayat Secretary or it is to his personal knowledge and if it is personal knowledge, the circumstance under which the personal knowledge had been acquired also would have to be explained," it added.

Granting relief to the woman, the court observed that for the interest of justice and in order to enable the petitioner to discharge the burden under Section 9 of the Foreigners Act, 1946, the petitioner may produce any such person who may have the knowledge that Abubakkar of the voter’s list of 1966 of village Numberpara Part III is the father of the petitioner and if any such person is presented, the said person may be allowed to depose before the Tribunal.

"Once the deposition is made, the respondents in the Home Department through the Superintendent of Police(B), Bongaigaon may cross-examine such person in order to extract the veracity of such deposition," said the court, adding if the petitioner is relying upon any school certificate, she may also examine the Headmaster of the school along with the original school records from which the information could have been obtained.

Case Title: Momtaj Begum v. The Union of India & 6 Ors.

Citation: 2023 LiveLaw (Gau) 64

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