BURDEN OF PROVING CITIZENSHIP RESTS ENTIRELY ON PROCEEDEE NOTWITHSTANDING PROVISIONS OF THE EVIDENCE ACT

The petitioner, Rabia Khatun, challenged the opinion of the Foreigners’ Tribunal No. 7, Barpeta, dated 13.03.2019, which declared her a foreigner post-25.03.1971.

A reference was made against her by the Superintendent of Police (B), Barpeta.

The petitioner filed a written statement claiming Indian citizenship by lineage, relying on 1966 and 1970 Voter Lists (projected father and stepmother) and 1997/2016 Voter Lists.

She also produced Gaonburah (village headman) certificates and oral testimony from her projected brother (DW3).

The Tribunal found she failed to discharge her burden of proof under Section 9 of the Foreigners Act, 1946.

1. Whether the petitioner discharged the burden of proof to establish her citizenship through cogent and admissible evidence as required under Section 9 of the Foreigners Act, 1946?

2. Whether the findings of the Foreigners’ Tribunal suffered from any jurisdictional error or procedural impropriety warranting interference under Article 226?

Section 9 of the Foreigners Act, 1946, which mandates that the burden of proving that a person is not a foreigner lies squarely on that person, notwithstanding the Indian Evidence Act.

Supreme Court’s ruling in Sarbananda Sonowal v. UOI (2005), which necessitates specific disclosure of birth dates, places, and parental details.

Romila Khatun v. UOI (2018) (distinction between proof of document and proof of contents).

Rupajan Begum v. UOI (2018) regarding the validation of Gaonburah certificates.

Certiorari jurisdiction under Article 226 as defined in Central Council for Research in Ayurvedic Sciences v. Bikartan Das (2023).

The court found the petitioner’s written statement "absolutely vague," failing to provide essential biographical details required by the Sonowal precedent.

Although the 1966 and 1970 Voter Lists contained names similar to her projected father, there was an "inexplicable gap of 27 years" before the next appearance in 1997 in a different district.

The court noted a discrepancy in her projected mother's age (60 years in 1997) and the lack of explanation for her absence from previous lists.

The Gaonburah certificates (Ext-I/J) were deemed legally insufficient as the Gaonburah (DW2) admitted during cross-examination that he had no personal knowledge of the petitioner’s ancestry, did not maintain official records for such certifications, and used the State Emblem without authority.

The court concluded there was no documentary evidence linking the petitioner to her projected ancestors.

The writ petition was dismissed, the interim stay on deportation was vacated, and the Tribunal's opinion declaring the petitioner a foreigner was upheld.