Electoral documents and inconsistent oral testimony without statutory electronic certification fail to discharge burden of proving citizenship.

In brief

The question

1. Whether the petitioner discharged the burden of proof under Section 9 of the Foreigners Act, 1946, to establish his Indian citizenship

The court held

The High Court dismissed the writ petition, upholding the Tribunal's opinion that the petitioner is a foreigner, holding that the petitioner failed to establish a linkage to ancestors present in India prior to 25.03.1971.

It also directed

The Court affirmed that PAN cards and EPIC are not proof of citizenship and found no "manifest error apparent on the face of the record" to warrant the issuance of a writ of certiorari, ordering Tribunal records returned for consequential action.

01Facts

The petitioner, Aminul Hoque, challenged an opinion dated 28.02.2019 passed by the Foreigners Tribunal No. 4, Kamrup (M), which declared him a foreigner.

p. 3

The petitioner claimed Indian citizenship by birth, asserting his father (Mohiruddin Sheikh) and grandfather (Pasan Ali) were residents of Assam prior to 1971.

pp. 3-4

He submitted various documents, including a 1951 NRC extract, voters' lists from 1966, 1970, 1979, 1985, 1989, 1997, 2005, 2013, 2015, and 2017, a 1973 land sale deed, and a school certificate.

pp. 6-7

The Tribunal rejected these documents due to material discrepancies in names, ages, and locations across the different villages of Dhobakura, Ghugudoba, and Hashdoba.

p. 10

02Issues

i.1. Whether the petitioner discharged the burden of proof under Section 9 of the Foreigners Act, 1946, to establish his Indian citizenship

p. 11 / para. 8(q)

ii.2. Whether computer-generated NRC extracts and post-reference documents like PAN cards and EPIC are admissible as primary evidence of citizenship without statutory certification

pp. 13-14 / para. 16-17

iii.3. Whether the oral testimony of a projected father is sufficient to establish a legal link in the absence of reliable documentary evidence

p. 18 / para. 26

03Law Applied

Section 9 of the Foreigners Act, 1946, which places the absolute burden of proving citizenship upon the person questioned.

p. 11

Mandatory requirement of a certificate under Section 65-B of the Evidence Act for electronic/computer-generated records as per Anowar P.V. v. P.K. Basheer (2014).

p. 13

Abdul Mojid v. Union of India (2019) and Section 15 of the Census Act, 1948, to hold NRC 1951 extracts inadmissible.

p. 13

Central Council for Research in Ayurvedic Sciences v. Bikartan Das (2023), establishing that a High Court exercising certiorari jurisdiction does not act as an appellate court or re-weigh evidence.

p. 19

Provisions in the judgment · 2 · Linked ones open on LawLens

Census Act, 1948 Section 15

Bharatiya Sakshya Adhiniyam, 2023 Section 63

04Reasoning

The Court found that the 1951 NRC extracts (Ext.A-1 and A-2) were computer-generated and lacked the mandatory Section 65-B certificate, rendering them legally inadmissible.

p. 13

While the petitioner claimed his family migrated between three villages, the Court noted significant inconsistencies in the ages of family members (notably his mother, Faziron Nessa) across voters' lists, which prevented the establishment of a continuous and credible family lineage.

p. 16

The Court rejected the land deed (Ext.D) because the petitioner failed to show how the property devolved to his father.

p. 17

The school certificate was discarded as its author was not examined to verify the school register.

p. 18

Applying Basiron Nessa v. Union of India, the Court held that the oral testimony of the father (DW-2) could not substitute for the missing documentary link between the petitioner and his projected ancestors.

p. 18