On Feb 18, the Gauhati HC dismissed a petition claiming citizenship by a woman from Assam, incarcerated at a detention centre in Jorhat since Jan 2019.
Nur Begum, declared foreigner by Foreigners’ Tribunal, Jorhat, on Jan 24, 2019, petitioned the HC in defence of her citizenship.
In Assam, citizenship is traced by descent, which means that to be considered an Indian citizen in the state, it is imperative that they link their identity to that of a pre-1971 ancestor — the cut-off as per Assam Accord of 1985.
Nur Begum submitted eight documents, including a 1966 voters’ list bearing her grandfather’s name. To establish her relationship with her grandfather, she submitted three documents: Class IX certificate from a provincialised school, a Gaon Burah (village headman) certificate, & a caste certificate stating that she belongs to the ‘Jolha’ community. All of them bore her father’s name, Raju Hussain, alias Rajen Ali.
In addition, she submitted the 1997 voters’ list, which established the relationship between her projected father & grandfather. However, the court was not satisfied with the documents, which sought to establish her relationship with her projected father.
The court ruled that “all certificates rendered itself as inadmissible in evidence, inasmuch as the authors were not examined to prove the certificates & the contents thereof”.
In other words, the court affirmed that the issuing authority of the linkage documents failed to vouch for their authenticity in court.
“The court was of the opinion that she couldn't prove her linkage with her father because of lack of oral testimony to prove the contents of the three documents,” Nur Begum’s lawyer H R A Choudhury said.
The three documents to establish linkage are a school certificate issued by the headmaster of Dooria Bagicha High School; a village panchayat certificate from Dulia Gaon, issued by the Govt Gaonburah of Dulia Gaon; & a caste certificate issued by the Sub-Divisional OBC Development Board, Golaghat.
Syed Burhanur Rahman, an advocate in HC who deals with citizenship-related cases, said since Nur Begum’s school certificate was from a provinciliased school, it becomes automatically admissible. He referred to a 2009 Supreme Court judgment (Shyam Lal @ Kuldeep vs Sanjeev Kumar & Ors) to prove his point: “If a public document — like Nur Begum’s school certificate — is adduced in a judicial forum, & that isn't rebutted by the other side, then presumption can be drawn in favour of that document.”
Jahurun Begum, Nur Begum’s projected mother, also testified that she is her daughter.
But the court held: “The statement of Jahurun Begum (DW-2) who claimed to be the mother of the petitioner, can't be relied upon in the absence of any documents showing her relationship, either to the projected grandfather, father or to the petitioner herself. Oral testimony of DW-2 alone, sans any documentary support, can't be treated as sufficient to prove linkage or help the cause of the petitioner.”
Rahman said Section 50 of Evidence Act, which says that close relatives can give oral testimonies to prove relations, could have been invoked to strengthen Begum’s mother’s testimony. “However, most FTs don’t appreciate it in right perspective,” he said.
Even in another recent order, the HC had dismissed the petition of one Jabeda Begum on similar grounds for failing to prove linkage with her projected parents. Jabeda had submitted 15 documents, including voters’ lists of four years, land revenue payment receipts, certificates from the village headman attesting to permanent residency & marriage, PAN card, & bank passbook.
“In Nur Begum’s case at least, the court should have considered that she is a tea garden Jolha Muslim & her family history has no connection whatsoever to Bangladesh,” Choudhry said.
Jolhas are colonial-era Muslim migrants from UP & Bihar, & many of them work as tea garden labourers in Golaghat & Jorhat. Begum belongs to a family of tea garden labourers, who she claims were brought by the British from “Hazaribagh & Ranchi districts of erstwhile Bihar in 1880s”.
“The court again took a technical view,” Choudhry said. “It is very difficult for poor people like her to approach the Supreme Court. But that is her only option now.
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