Oral testimony alone cannot discharge a proceedee’s Section 9 burden without cogent documentary linkage evidence.

The petitioner challenged the Foreigners Tribunal No. 1, Barpeta’s opinion dated 20 August 2018 declaring her a foreigner who entered Assam after 25 March 1971.

She claimed Indian citizenship through her projected parents, Abdul Hakim and Sarifan Nessa, whose names appeared in electoral rolls of 1966 and 1970.

To establish linkage, she relied on her own testimony, testimony from a projected brother and a Gaonburah, electoral records, and a Gaonburah certificate.

The Tribunal answered the reference against her, and she sought judicial review under Article 226.

1. Whether the petitioner established, by sufficient evidence, her linkage to her projected parents and thereby discharged the burden under Section 9 of the Foreigners Act, 1946

2. Whether the Tribunal’s opinion declaring the petitioner a foreigner disclosed an infirmity warranting interference under Article 226

Section 9 of the Foreigners Act, 1946 places on the proceedee the burden of proving that she is not a foreigner; the Court stated that this burden may be discharged on a preponderance of probability.

A proceedee must set out necessary particulars, including relevant family details, in her written statement; material variance between pleadings and evidence, or omission of important particulars, weakens the discharge of that burden.

Sarbananda Sonowal v. Union of India, 2005 (5) SCC 665, was cited in support of the requirement to provide particulars within the proceedee’s knowledge.

A reference must rest on reasonable grounds; applying Rahim Ali @ Rahim v. Union of India, 2014 0 Supreme (SC) 575, the Court found that the field verification and inability to furnish documents supplied such grounds in this case.

The 1966 and 1970 electoral rolls showed the presence of the petitioner’s projected parents in India before the cut-off date, but did not establish her relationship to them.

The petitioner’s written statement did not mention the projected brother who later testified, and her own evidence did not name him.

The brother’s voter identification record named his father as Hakibar Ali, not Abdul Hakim; the Gaonburah certificate likewise named Hakibar Ali, and the Gaonburah’s testimony was not supported by contemporaneous records establishing its basis.

The Court therefore found the oral evidence and certificate insufficient to establish linkage, and held that the petitioner had not discharged her Section 9 burden.

The writ petition was dismissed, any interim order was vacated, and the original record was directed to be returned to the Tribunal.