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Gauhati High Court Upholds Foreigner Declaration, Stresses Burden of Proof on Claimant

Guwahati: The Gauhati High Court has dismissed a writ petition challenging the opinion of a Foreigners Tribunal that declared the petitioner, Fakar Uddin , a foreigner who entered India (Assam) on or after March 25, 1971. The division bench of Justice Kalyan Rai Surana and Justice Malasri Nandi reinforced that the burden of proving Indian citizenship lies squarely on the individual claiming it, particularly in proceedings before the Foreigners Tribunal.

The judgment, delivered on March 26, 2025, in WP(C)/8701/2018 , reviewed the evidence presented by the petitioner before the Foreigners Tribunal No. 1, Barpeta , and found it insufficient to discharge the burden of proof mandated under Section 9 of the Foreigners Act, 1946.

Case Background

Fakar Uddin , a resident of Bheraldi village in Barpeta district, was referred to the Foreigners Tribunal by the Superintendent of Police (Border) based on suspicion of being an illegal immigrant from Bangladesh . He appeared before the Tribunal, filed written statements, and contested the claim, asserting that he was born and brought up in Assam and that his parents and grandfather were Indian citizens.

To substantiate his claim, Fakar Uddin (as DW-1) and his projected uncle, Jaliluddin (as DW-2), presented several documents, including voter lists from 1966, 1970, 1989, and 1997, a jamabandi land record, birth and registration certificates of his sons, a Gaonburah (village headman) certificate, and affidavits seeking to explain discrepancies in names across documents.

Petitioner's Arguments

The petitioner's counsel argued that the Tribunal failed to properly appreciate the documentary evidence and the testimony of DW-2. It was contended that the police investigation preceding the reference was vague and unfair, lacking specific grounds for suspicion. Citing various Supreme Court and High Court judgments, including Md. Rahim Ali @ Abdur Rahim v. State of Assam , the petitioner's side also argued that minor discrepancies in names should not be held against the claimant and that voter lists, though not proof of citizenship, can be supporting evidence. They also argued that requiring a detailed written statement is not strictly envisaged under the Foreigners (Tribunals) Order, 1964.

Respondent's Submissions

The Standing Counsel for FT matters defended the Tribunal's opinion, asserting that the non-mentioning of the specific 'stream' of foreigner in the notice is not consequential, as held in Anand Ghosh v. Union of India . They argued that the petitioner's attempts to link himself to voters through claims of name discrepancies were not believable due to age inconsistencies. They relied on precedents like Sarbananda Sonowal v. Union of India regarding the burden of proof and other judgments supporting the Tribunal's approach.

Court's Analysis and Findings

The High Court meticulously examined the records and the evidence presented. Regarding the alleged vagueness of the police enquiry and reference, the Court noted that the Superintendent of Police's report did spell out the suspicion of illegal entry post-25.03.1971 and that the petitioner had not demonstrated any prejudice suffered due to not being furnished with the report earlier. Citing Ananda Ghosh , the Court reiterated that wrong or non-mentioning of the stream of foreigner does not vitiate the proceedings if the conclusion aligns with the materials on record.

Critically, the Court found that despite exhibiting numerous documents (Ext.A to Ext.N), the petitioner failed to prove the contents of these documents, including the specific entries in the voter lists linking him to his projected father and grandfather. The Court cited Narbada Devi Gupta v. Birendra Kr. Jaiswal to emphasize that mere marking of a document as an exhibit does not prove its contents.

The Court held that voter lists alone are not sufficient to prove relationships like father-son or grandfather-grandson without corroborative evidence. The jamabandi record, being dated January 30, 1977 (after the cut-off date), also did not help the petitioner establish his existence before March 25, 1971.

Regarding the affidavits attempting to explain name discrepancies, the Court relied on its earlier co-ordinate bench decision in Basiron Bibi v. Union of India , which held that such affidavits are not acceptable evidence to prove spelling discrepancies. The Court distinguished the Supreme Court's observations in Md. Rahim Ali , noting that unlike that case where the appellant had produced documents showing ancestral residence prior to the cut-off and consistent voter records linking family members, Fakar Uddin 's case lacked sufficient pleading and proof of his family tree and connections to the exhibited documents.

The Court also addressed the argument regarding the necessity of a written statement. It noted a conflict between its prior judgments in Haidar Ali v. Union of India (suggesting CPC rules on written statements may not strictly apply) and Rashminara Begum v. Union of India (holding that the procedure under the 1964 Order envisages a written statement and evidence). Applying the principle of stare decisis as highlighted by the Supreme Court in National Insurance Company Limited v. Pranay Sethi , the Court leaned towards the earlier view in Rashminara Begum , finding that the petitioner's failure to disclose his full family tree in his pleadings and evidence adversely affected his case.

Furthermore, the Court noted that the petitioner did not attempt to prove the alleged spelling mistakes by summoning election officials or the author of the Gaonburah certificate. It also invoked the presumption under Section 119, Illustration (g) of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Section 114, Illustration (g) of the Evidence Act, 1872) that evidence not produced, if produced, would be unfavorable to the person withholding it.

Conclusion

The Gauhati High Court concluded that the Foreigners Tribunal's opinion was sustainable on facts and law. The Court found no misreading or misconstruction of pleadings and evidence by the Tribunal. The finding that the petitioner failed to discharge the burden of proving his citizenship and existence in India prior to March 25, 1971, was upheld.

Accordingly, the writ petition was dismissed, affirming the Tribunal's declaration that Fakar Uddin is a foreigner. The Court directed the Standing Counsel for FT matters to transmit a copy of the order to the Superintendent of Police (Border), Barpeta , and the Registry to return the Tribunal's records along with a copy of the High Court's order.

The judgment underscores the high standard of proof required from individuals challenging foreigner declarations in Assam, emphasizing the need for properly pleaded cases, admissible evidence proving the contents of documents, and credible linkages to progenitors to establish citizenship claims based on lineage.

Bench: Hon'ble Mr. Justice Kalyan Rai Surana , Hon'ble Mrs. Justice Malasri Nandi

Case No.: WP(C)/8701/2018

Date of Judgment: 26/03/2025

Foreigners Tribunal Case: F.T. Case No. 289/2016 (arising out of F.T. Ref. Case No. 25/16)