Amid the going stir on the Citizenship Laws, the Gauhati High Court, in one its judgement has upheld a that a woman declared foreigner in the NRC process so conducted is one, on the ground that she failed to prove the certificates so produced to claim citizenship, by way of testimony of the issuing authority.

The verdict was given in a case titled as Rabia Khatun v. Union of India

CASE PROCEEDINGS

The present petition had been filed challenging the order passed by the Foreigners Tribunal Sonitpur on May 16, 2017, declaring her to be a foreigner in the post-1971 stream as per the Assam Accord.

In row to prove on her Indian Citizenship, she had produced 4 documents, viz. the Elector Photo Identity Card, Electoral Roll of 1965 in the name of her projected grandfather, a Marriage Certificate issued in her name and a Gaonburah Certificate issued in her name.

The Court held the documents as inadmissible evidence.

With regards to the Elector Photo Identity Card, the Gauhati High Court has already held in Munindra Biswas v. Union of India & Ors., WP (C) No. 7426/2019 that it is not conclusive proof of citizenship and it cannot be considered while assessing whether a person is a foreigner under the Assam Accord of 1985.

With regards, the Electoral Roll of 1965 the Court held that "no voter lists were produced and exhibited showing the name of the petitioner with her projected father or grandfather as voters."

It held:

"Besides the documents above, the petitioner did not present for examination any independent witnesses in support of her case. The Electoral Roll of 1965 at Exhibit-B only reflects the name of the petitioner's projected grandfather. However, no voter lists were produced and exhibited showing the name of the petitioner with her projected father or grandfather as voters. The Elector Photo Identity Card at Exhibit-A cannot be treated as a valid document to prove citizenship in law."

The rest of the two documents, i.e. the Marriage Certificate and the Gaonburah Certificate were also held to be inadmissible by the Court, for the same was not proved by way of legal testimony of the issuing authority.

The Court was of the view:

"Other documents like Marriage Certificate at Exhibit-C and the Gaonburah Certificate at Exhibit-D issued by the same Gaonburah of village 1 No. Jia Gabhoru, 2 No. Jia Gabhoru, Rikimari Lat, rendered itself as inadmissible in evidence, inasmuch as, the said Certificates and the contents thereof did not stand proved through the legal testimony of the issuing authority," 

It was further observed that the petitioner had not made any efforts to produce any admissible document or voter list prior to the cut-off date i.e. 25.03.1971, showing the existence of her projected father in Indian soil.

In the end, on the basis of the above arguments, it was held that the Petitioner failed to discharge the burden to prove citizenship as per Section 9 of the Foreigners Act and the writ petition came to be dismissed.

"This is a clear case where the petitioner utterly failed to prove linkage and to discharge the burden, as required of her, under Section 9 of the Foreigners Act, 1946…the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected father and/or grandfather,"

Similar had happened in a case titled as Sahera Khatun v. Union of India & Ors., WP (C) 7482/2019, wherein the Gauhati High Court had declared a woman to be a foreigner by holding that she had failed to prove her school certificates by the testimony of the issuing authority.

The judegment in the present case has been delivered by Justice Manojit Bhuyan and Justice Parthivjyoti Saikia on 28-02-2020.

Read Order Here:

 

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