Back
Ahmed Hussain fails to prove citizenship; Gauhati High Court dismisses petition, orders passport probe
The has dismissed a filed by Ahmed Hussain challenging a 2019 order of the , which declared him a foreigner who entered Assam after . In a significant ancillary direction, the Court also ordered the and the Director General of Police to investigate how a passport was issued to Hussain while a citizenship reference against him was already pending.
The Burden That Never Shifts
A Division Bench comprising Justice Sanjay Kumar Medhi and Justice Pranjal Das delivered the judgment on , reaffirming the strict evidentiary burden placed on proceedees under the . The Court cited Section 9 of the Act, which contains a overriding the , to hold that the rests entirely on the person claiming it.
“With regard to the aspect of as laid down in Section 9 of the Act of 1946, the law is well settled that the that a is an Indian citizen is always on the said and never shifts,” the Bench observed.
A Web of Inconsistencies
Hussain had relied on multiple voters' lists, a school transfer certificate, a passport, and oral testimony from himself, his mother, and his maternal uncle. He claimed his father Abdul Malik's name appeared in the 1965 voters' list, and that his own name featured in lists from 2005 and 2010.
However, the Court found critical inconsistencies. In the 1965 list, Abdul Malik was shown as son of Ayub Ali, but in the 1970 list he was son of Aban Ali, and in 1977 the name changed to Md. A. Malek. The first voters' list with Hussain's name did not include his parents. His mother, Rejiya Begum, deposed that she had six children, yet the written statement filed on , made no mention of any siblings.
The Court dismissed the evidentiary value of the Electoral Photo Identity Card (EPIC) of the mother, noting that “EPIC is not a document to prove citizenship.” The school transfer certificate, issued after a two-decade gap, was not proved by its author, and the passport—issued on , after the reference had been initiated in —was also not proved in accordance with law.
Oral Testimony Sans Support
The Bench firmly rejected the of the mother and maternal uncle, reiterating a settled legal principle. “As regards by DW2 and DW3, it is a settled law that such without documentary support cannot be accepted as relevant evidence,” the judgment stated.
Citing the 's decision in , the High Court noted that a must disclose his date of birth, place of birth, names of parents, and their place of birth and citizenship—facts that are within his personal knowledge. Hussain's written statement was found to be “vague” and deficient in these essentials.
The Passport Puzzle
While dismissing the petition, the Court expressed “intrigue” at how a passport could have been issued to Hussain despite a pending reference. A mandatory police verification is required before issuance, and the Court found it inexplicable that a favorable report was given when the very question of citizenship was under scrutiny.
“Considering the seriousness of the matter where a facing a citizenship issue has been granted a Passport, this Court directs the Department of Home, Assam and the to cause an inquiry in the matter, cast responsibility and take appropriate step against the erring personnel,” the Bench ordered.
The Court directed that action taken be intimated to the Registry expeditiously.
Final Verdict
The was dismissed in its entirety, and the earlier passed was vacated. The Court held that the Tribunal's opinion did not warrant interference under the , as findings of fact cannot be re-appreciated in a supervisory capacity unless there is an . No such error was found.
The judgment serves as a reminder of the high evidentiary bar faced by those claiming citizenship in under the Foreigners Act, and the serious consequences that follow from failing to discharge that burden.
