S.9 Foreigners Act | Burden Of Proving Indian Citizenship Always Lies On Proceedee And Never Shifts: Gauhati High Court

The Gauhati High Court has held that in proceedings before a Foreigners Tribunal, the burden to prove citizenship lies entirely upon the proceedee and such burden cannot be discharged through vague pleadings, inconsistent voter lists and unproved certificates unsupported by contemporaneous documentary evidence.

The Court was hearing a writ petition filed by one Dabir Rahman challenging a 2018 opinion passed by the Foreigners Tribunal, declaring him to be a foreigner post 25.03.1971.

A Division Bench of Justice Sanjay Kumar Medhi and Justice Pranjal Das observed, “With regard to the aspect of burden of proof as laid down in Section 9 of the Act of 1946, the law is well settled that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts. In the said Section, there is non-obstante clause that the provisions of the Indian Evidence Act would not be applicable.”

The Court further held that the petitioner's written statement did not satisfy the legal requirements necessary in such proceedings. The bench observed:

“The written statement is absolutely vague and apparently, has not met the requirements…”

The Bench further noted that there is a requirement to disclose:

“(i) his date of birth; (ii) place of birth; (iii) name of his parents; (iv) their place of birth and citizenship.”

Before the Tribunal, the petitioner had relied upon voter lists of 1966, 1971, 1997 and 2018, voter ID, legacy data code, NRC acknowledgement receipt and a Gaonburah certificate to establish his citizenship and linkage with his projected father.

The petitioner contended that he had adduced cogent evidence and since there was no rebuttal evidence from the State, the Tribunal ought to have accepted his claim. He had also argued that the voter lists of 1966 and 1971 contained the names of his projected parents.

The respondents, however, argued that under Section 9 of the Foreigners Act, the burden rests entirely on the proceedee. It was also contended that the written statement lacked basic particulars regarding birth and family details and that the Gaonburah certificate had not been proved in accordance with law.

While examining the materials, the High Court found several inconsistencies in the documents relied upon by the petitioner. The Court observed, “So far as the Voters Lists of 1966 and 1971 are concerned, apart from the fact that the same would not serve as link documents, it is found that there are lots of inconsistencies. ... it was necessary for his name to be featured in the earlier Voters List especially, in the List of 1966 along with his parents. Though the Voters Lists of 1989 and 1993 have been referred, those have not been exhibited.”

The Court noted that the names of the projected parents differed between the voter lists of 1966 and 1971 and there was also a change in village names. The Court further observed that although a projected brother was shown as 27 years old in the 1971 voter list, his name did not appear in the earlier 1966 voter list.

The Court also found unexplained gaps in the voter lists relied upon by the petitioner. It noted, “What is intriguing is the fact that though in 1997, the petitioner was aged 45 years why Voters List of earlier years did not contain his name and have not been proved.”

The Court further observed, “the huge gap of more than 25 years remains unexplained.”

Finally, the High Court held, “oral evidence alone would not be enough and such evidence is required to be supported and corroborated by documentary evidence and contemporaneous records.”

“We are of the view that the petitioner as proceedee had failed to discharge his burden to prove his citizenship,” the Court concluded.

Accordingly, the Court dismissed the writ petition and upheld the Foreigners Tribunal's opinion declaring the petitioner to be a foreigner.

Case Name: Dabir Rahman @ Dabibur Rahman v. Union of India & Ors.

Case Number: WP(C)/4272/2019

Click Here To Read Judgement