Burden of Proving Citizenship on Claimant: Gauhati HC

The Gauhati High Court has dismissed the writ petition filed by Nur Begum who had challenged the order of Foreigners’ Tribunal declaring her a foreigner/illegal immigrant of the post 1971 stream.

The HC order, declared by a division bench of justices Manojit Bhuyan and Parthivjyoti Saikia, observed that the petitioner could not prove linkage to any ancestors who were residing in Assam before March 24, 1971, the cut-off date prescribed under Assam Accord, according to a report by Live Law. Dismissing the petition, the court also observed that the onus of proving citizenship was on the proceedee, and the petitioner, whose birth year is claimed to be 1986, had failed to discharge the same.

The petitioner had produced eight documents to prove her case including the voters’ list of 1997 and 1966, which held the names of her father Raju Hussain and grandfather Jenurathdin, respectively. However, the Live Law report stated that the HC held that “reflection of a name in a document is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entity by means of cogent, reliable and admissible document/evidence”.

The petitioner had also produced her school leaving certificate issued in 2000, which held her father as Raju Hussain. Not only that, she had also presented a caste certificate issued by the government in 2014, which certified her as the daughter of Raju Hussain. However, bench observed that all such documents issued by local authorities have to be accompanied by the legal testimony of the issuing authority. The order says, "All the certificates rendered itself as inadmissible in evidence, inasmuch as, the authors were not examined to prove the Certificates and the contents thereof.”

The Elector Photo Identity card of the petitioner’s projected mother, Jahorun Hussain was produced in the court, along with the oral testimony of the mother. But, discarding the oral evidence the court said, "In a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship."

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Referring to section 9 of the Foreigners Act 1946, the bench further added that, “As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, 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 parents and/or the grandfather.”

PAN Card, Land Revenue Receipts No Proof of Citizenship: HC

Last week, while dismissing the petition filed by Jabeda Begum against a tribunal order rejecting her citizenship claim, the HC had observed that PAN card, land and bank documents do not prove one's Indian citizenship, Business Today had reported.

A division bench, comprising the same judges had dismissed the plea citing that the documents submitted by her failed to establish her linkage to her projected father or brother. She had earlier received a notice issued by the Foreigners Tribunal, Baksa, Tamulpur, Assam on a reference made by the Superintendent of Police (Border), which asked her to prove her citizenship. Following which, she had produced 14 documents along with a written statement before the tribunal claiming her citizenship by birth, PTI had reported. Before the tribunal, she stated that the names of her parents had appeared in the voters’ list of 1966. She claimed that even the names of her grandparents had appeared in the voters’ list of 1966. The petitioner further stated that her father's name appeared in the voters’ lists of 1970 and 1997 also.

However, the tribunal dismissed her plea observing that “village headmen are not entitled to issue certificates supporting the citizenship of a person and also rejected the bank documents as these adequately do not prove to be her's”. The tribunal also held that she could not establish any link with her projected parents through the documents submitted. She then appealed against the ruling in the HC.

Also read: Uncertainty Around NRC is Taking Human Lives in Assam

According to PTI, Begum had submitted the said 14 documents, including her PAN card and ration card, two bank passbooks, the details of her father Jabed Ali, voter lists where the names of her grandparents, parents and her along with her husband were published and several land revenue receipts to the HC.

The bench, however, dismissed the eligibility of the documents in verifying one’s citizenship claims saying that, “Land Revenue Paying Receipts do not prove a citizenship of a person.” It further added, "This Court in Md. Babul Islam Vs. Union of India [WP(C)/3547/2016], has already held that PAN Card and Bank documents are not proof of citizenship".

The HC also did not take into account the village head’s certificates. “Certificates issued by a Village Gaon Bura can never be the proof of citizenship of a person. Such certificate can only be used by a married woman to prove that after her marriage, she had shifted to her matrimonial village [Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579],” read the order.

The same bench in another case had held that electoral photo identity card was not proof of citizenship.

The orders reflect how the onus of proving one’s citizenship has been put on the claimants, who had already been forced to go through a similar process during the preparation of the National Register of Citizens, Assam.

The updated list of the NRC was published in August 2019, following a five-year process under the supervision of the Supreme Court. Out of the 3.3 crore applicants, around 19 lakh applicants were left out of the final list. Assam is the only state where NRC containing names of citizens was prepared in 1951.

Also watch: Eroding Citizenship in Assam | Karwan e Mohabbat