Burden of Proving Citizenship Linkage Under Section 9 of the Foreigners Act Requires Irrebuttable Documentary Evidence

The petitioner, Amela Khatun, challenged the opinion dated 22.02.2019 passed by the Foreigners’ Tribunal, Bongaigaon No. 2, which declared her a foreigner of the post-25.03.1971 stream

The petitioner claimed to be the daughter of Hazrat Ali @ Hazrat Mandal (projected father) and Sakina Khatun, born in Village-Balagaon, Barpeta, and later moved to Bongaigaon after marriage to Minhaz Ali

To prove her Indian citizenship and linkage, she submitted voters’ lists from 1966 and 1970 containing her father's name, subsequent voters' lists (1989–2016) containing her own name, and a registered Gift Deed executed by her father in 2016

During the Tribunal proceedings, the evidence of her father (DW-2) was expunged because he failed to appear for cross-examination

1. Whether the petitioner established a direct bloodline linkage to an Indian ancestor residing in India prior to the cut-off date of 25.03.1971

2. Whether the Foreigners’ Tribunal erred in law by expunging the evidence of the petitioner’s father (DW-2) and failing to consider the registered Gift Deed as a linkage document

The Court applied Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving citizenship lies squarely on the proceedee

It relied on the principle that linkage must be established through documents showing a direct bloodline connection to an Indian ancestor prior to 25.03.1971

Under established precedents such as Md. Babul Islam v. Union of India, the Court noted that post-reference documents like Elector Photo Identity Cards (EPIC) and PAN cards do not serve as proof of citizenship

Furthermore, per Rashminara Begum v. Union of India, a proceedee must disclose all material facts in their written statement and cannot traverse beyond those pleadings

The Court found that the voters' lists of 1966 and 1970 only named the projected parents and provided no linkage to the petitioner

Although the petitioner’s name appeared in voters' lists from 1989 onwards, these were with her husband and failed to establish a connection to her father

The Court dismissed the 2010 voters' list due to discrepancies in the father's name and the absence of the brothers' names in the petitioner’s initial pleadings

Regarding the 2016 Gift Deed, the Court ruled it inadmissible as a linkage document because its author (the father) did not undergo cross-examination, leading to the evidence being expunged

Additionally, the Deed was executed just days before the written statement was filed, raising doubts about its authenticity as a post-reference document

The Court held that EPIC and PAN cards are identification documents only and do not override the legal requirements of citizenship

The Court affirmed that the Tribunal correctly expunged the father's evidence for non-appearance

Consequently, the High Court found no illegality in the Tribunal’s opinion, dismissed the writ petition, and ordered the relevant authorities to take consequential actions in accordance with the law