Gauhati HC Upholds Post-1971 Foreigner Finding Against Assam Man Who Failed To Prove His Link To Pre-1971 Voters

In brief

The question

Whether the petitioner established his Indian citizenship by proving the claimed links to his father and grandfather, such that the Tribunal’s opinion warranted interference.

The court held

The Court held that the petitioner had not established the claimed family linkage or shown grounds to interfere with the Tribunal’s opinion.

It also directed

The writ petition was dismissed, with no order as to costs, and the consequences of the Tribunal’s opinion were directed to follow.

01Facts

The petitioner challenged the Foreigners’ Tribunal’s opinion dated 27 August 2018, which declared him a foreigner who entered India after 25 March 1971.

p. 3 · ¶ 2

He claimed Indian citizenship through his projected father, Sadar Ali, and grandfather, Jahur Ali, relying on electoral rolls, a jamabandi, and other documents; he also examined a Gaonburah as a witness.

pp. 3–6 · ¶ 4–8

The Tribunal rejected the claimed linkage and the petitioner’s documentary and oral evidence.

pp. 9–10 · ¶ 19–20 · p. 13 · ¶ 32

In the writ proceedings, the petitioner argued that the Tribunal had wrongly discarded his evidence, including because the State had not cross-examined his witnesses.

pp. 9–10 · ¶ 19–20 · p. 13 · ¶ 32

02Issues

i.Whether the petitioner established his Indian citizenship by proving the claimed links to his father and grandfather, such that the Tribunal’s opinion warranted interference.

pp. 11–13 · ¶ 24–30

ii.Whether the absence of cross-examination of the petitioner’s witnesses was sufficient to establish his citizenship despite the evidence adduced.

pp. 13–15 · ¶ 32–38

03Law Applied

Section 9 of the Foreigners Act, 1946 places the burden on the person concerned to prove that they are not a foreigner, as affirmed in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.

p. 14 · ¶ 34

Material facts must be established by cogent and admissible evidence; failure to plead material facts may support an adverse inference.

p. 14 · ¶ 35

Merely filing or exhibiting a document does not prove the truth of its contents, and oral testimony alone does not establish citizenship; documents must be proved and admissible.

pp. 14–15 · ¶ 36–37

The Court held that the decision in Anowara Begum v. Union of India, WP(C) No. 1066/2018, did not displace these principles.

pp. 13–15 · ¶ 32–38

Provisions in the judgment · 1

Foreigners Act, 1946 Section 9

04Reasoning

The petitioner did not plead or establish his relationship with the other persons listed alongside Jahur Ali in the electoral rolls and jamabandi, nor adequately explain the family entries said to connect Sadar Ali to Jahur Ali.

pp. 11–13 · ¶ 24–30

The Court also noted inconsistencies in the petitioner’s recorded ages and the electoral-roll entries, and found that the Gaonburah certificate had been issued to assist him in the pending case and lacked reliable evidentiary value.

pp. 5–6 · ¶ 8 · pp. 12–13 · ¶ 27–30

On the Court’s view of Section 9 and the cited evidentiary principles, the absence of cross-examination did not cure the deficiencies in the pleadings and proof; the petitioner remained responsible for establishing the relevant facts through cogent and admissible evidence.

pp. 13–15 · ¶ 33–38