IMPORTANT POINT
The burden of proving citizenship lies with the individual claiming it, and mere oral testimony is inadequate without corroborating documentary evidence.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. A. Dasgupta, learned Senior Counsel, assisted by Ms. B. Das, learned Counsel, appearing for the petitioner. Also heard Ms. A. Gayan, learned Central Government Counsel, for the respondent No. 1. Also heard Mr. J. Payeng, learned Standing Counsel, Home Department, Assam, for respondent Nos. 2 and 6; and Mr. A. I. Ali, learned Standing Counsel, Election Commission of India, for Respondent No. 3. Also heard Mr. P. Sharma, learned Additional Senior Government Advocate, Assam, for respondent No. 5.

2. This writ petition has been filed under Article 226 of the Constitution of India, by the petitioner Jyotshna Rani Saha @ Jyotsna Rani, impugning the judgment and order dated 28.05.2018, passed in F.T. 9th (Bar) Case No.408/2015, by the learned Member, Foreigners’ Tribunal, (9th), Barpeta, Assam, whereby the petitioner has been declared as a foreigner under the Foreigners Act, 1946, who had illegally entered into India (Assam) on or after 25.03.1971.

3. Earlier on 17.12.2019, the Court called for the records of said Foreigners’ Tribunal Case from the concerned Tribunal.

4. On perusal of the record, we have seen that having reasonable doubt that the petitioner is an illegal migrant, the Superintendent of Police (Border), Barpeta, had made a reference referring the doubtful Case No. 6738(A) to the Illegal Migrant Determination Tribunals, Barpeta, for determining as to whether the petitioner Jyotshna Rani Saha was an illegal migrant. Under Section 3 (1)(C) of the Illegal Migrants(Determination by Tribunals) Act, 1983, (hereinafter referred to as “the IM(D)T Act”), an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971.

5. As the IM(D)T Act was declared unconstitutional by the Hon’ble Supreme Court of India in the case of “Sarbananda Sonowal v. Union of India, reported in(2005) 5 SCC 665,” with the further direction that the references which were pending before the Tribunal constituted under IM(D)T Act should be transferred to the Tribunal constituted under Foreigners Act, 1946, read with the Foreigners (Tribunals) Order, 1964, consequently, the related reference was transferred to the Foreigners Tribunal No. 2, Barpeta. Thereafter, the said case was transferred to the Foreigners’ Tribunal, (9th), Barpeta, Assam, and Case No. F.T. 9th (BPT) Case No. 408/2015 was registered.

6. It appears from the records of F.T. 9th (Bar) Case No. 408/2015 that the petitioner appeared before the learned Tribunal and on 29.11.2016 had filed her written statement claiming therein that she is not a foreigner, but a citizen of India by birth.

7. In her written statement, the petitioner has stated that, she was born in the year 1952 in the village Mandia Gaon under Baghbar police station in the then Kamrup District of Assam and she was brought up in the said village. She has stated that she lost her parents, namely, Dinesh Chandra Saha (father) and Swarabala Saha (mother), in her childhood. It is further stated in her written statement that, after the death of her parents, she shifted to the house of her maternal uncle at village Mandia Gaon under Baghbar police station and she was looked after and was brought up in her maternal uncle’s house, along with her brothers and sisters. She has also stated that as her parents had died before the year 1965 so that their names could not appear in the voter list of 1965 onwards. She has also stated in her written statement that her brother Ramendra Saha is a citizen of India and his name was duly entered in the voter list of 1966, in respect of No. 52 Baghbar Legislative Assembly Constituency under the then Kamrup District. She has also stated that her brother's name was also reflected in the voter list of 1970 in respect of No. 52 Baghbar Legislative Assembly Constituency. She has also stated that in the year 1970 she got married to one Labu Saha of Barpeta road Ward No. 3 under Barpeta Road Police Station in the District of Barpet