Gauhati High Court dismisses citizenship plea, orders inquiry into passport issued while foreigner reference was pending

A reference was made by the Superintendent of Police (B), Hojai, against Ahmed Hussain under the Foreigners Act, 1946, resulting in F.T./L. Case No. 1296/2016 before the Foreigners’ Tribunal, Nagaon Court No. 7, Hojai.

The petitioner filed a written statement, documentary evidence, and examined himself, his mother, and his maternal uncle as defence witnesses.

He relied, inter alia, on electoral rolls from 1965, 1970, 1977, 2005, 2010 and 2016, electoral identity cards, a school transfer certificate, a Gaon Burah certificate, land-revenue receipts, a passport, and a sale deed.

By order dated 25 October 2019, the Tribunal held that the petitioner had failed to discharge the burden under Section 9 of the Foreigners Act and declared him a foreigner who had entered India after 25 March 1971.

The petitioner challenged that opinion under Article 226 of the Constitution.

Whether the petitioner discharged the statutory burden under Section 9 of the Foreigners Act, 1946, to prove that he was not a foreigner and to establish his linkage with Indian ancestors prior to 25 March 1971.

Whether the Foreigners’ Tribunal’s assessment of the electoral rolls, oral testimony, school transfer certificate, and passport disclosed an error of law, procedural illegality, or other ground warranting interference under Article 226.

Whether the alleged issuance of the petitioner’s passport, despite the pendency of the citizenship reference, required an independent inquiry by the State authorities.

Section 9 of the Foreigners Act, 1946 places the burden of proving that a person is not a foreigner upon that person, notwithstanding the Indian Evidence Act.

The Court relied on Fateh Mohd. v. Delhi Administration, AIR 1963 SC 1035, and Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which recognise that the proceedee must ordinarily establish relevant facts such as date and place of birth, parentage, and the place of birth and citizenship of the parents.

In certiorari proceedings under Article 226, the High Court exercises supervisory, not appellate, jurisdiction and does not reappreciate or reweigh evidence; interference is justified for jurisdictional error, patent error of law, procedural illegality, or findings unsupported by evidence.

The Court further applied the principles in Khudeja Khatoon v. Union of India, 2018 (3) GLT 347, Romila Khatun v. Union of India, 2018 (4) GLT 373, and Rupajan Begum v. Union of India, (2018) 1 SCC 579, that documentary evidence must be properly proved, including both its authenticity and the truth of its contents, and that oral testimony unsupported by reliable documentary evidence is insufficient to establish citizenship or familial linkage.

The Court found that the petitioner’s written statement was vague and did not adequately disclose his date and place of birth, details of his parents, or their place of birth and citizenship, contrary to the requirements identified in Sarbananda Sonowal.

The electoral rolls contained material inconsistencies: the petitioner’s projected father appeared as “Abdul Malik son of Ayub Ali” in 1965, but as “Abdul Malik son of Aban Ali” in 1970 and “Md. A. Malek son of Aban Ali” in 1977; the later rolls did not establish the petitioner’s linkage with his parents.

The evidence of the projected mother and maternal uncle was not supported by contemporaneous documentary records, and the absence of the mother’s name from relevant electoral rolls weakened the claimed relationship.

The school transfer certificate was issued approximately two decades after the petitioner left school and was not proved through its author or a school representative.

The passport was also not proved through evidence from the passport authorities and, in any event, had been issued after the reference was initiated.

Accordingly, the Court held that the petitioner failed to establish a credible pre-1971 Indian lineage and found no jurisdictional or legal error in the Tribunal’s decision warranting certiorari.

The interim order was vacated, and consequential action was directed to proceed in accordance with law.

The Tribunal records were ordered to be returned.

Separately, noting that the petitioner’s passport appeared to have been issued while the reference was pending, the Court directed the Assam Home Department and the Director General of Police, Assam, to conduct an inquiry, fix responsibility, take appropriate action against any erring personnel, and inform the Registry of the action taken.