Passport Issued Despite Pending Citizenship Reference: Gauhati High Court Orders Inquiry, Directs Assam DGP To Fix Responsibility
The Gauhati High Court has directed the Assam Home Department and the Director General of Police to inquire into how a passport was issued to a person whose citizenship was already under question in a pending Foreigners Tribunal reference.A Division Bench of Justice Sanjay Kumar Medhi and Justice Pranjal Das, observed:“This Court fails to comprehend as to how such Passport could have...
The Gauhati High Court has directed the Assam Home Department and the Director General of Police to inquire into how a passport was issued to a person whose citizenship was already under question in a pending Foreigners Tribunal reference.
A Division Bench of Justice Sanjay Kumar Medhi and Justice Pranjal Das, observed:
“This Court fails to comprehend as to how such Passport could have been issued inasmuch as, prior to issuance of such Passport, which is effective from 30.05.2013, the present Reference was already pending. A mandatory pre-requisite for issuance of a Passport is a police verification. This Court fails to understand as to how a favourable report could have been given in such police report when the aspect of the petitioner's citizenship itself was questioned by the Reference.
Considering the seriousness of the matter where a proceedee facing a citizenship issue has been granted a Passport, this Court directs the Department of Home, Assam and the Director General of Police, Assam to cause an inquiry in the matter, cast responsibility and take appropriate step against the erring personnel.”
The observations came in a man's writ petition challenging a 2019 opinion of the Foreigners' Tribunal, Nagaon whereby the Tribunal had declared the petitioner, Ahmed Hussain, to be a foreigner post March 25, 1971.
The petitioner had relied upon voters' lists of 1965, 1970, 1977, 2005, 2010 and 2016, electoral identity cards, a school transfer certificate, a residency certificate issued by the Gaon Burah, revenue receipt, passport, affidavit and sale deed. He also examined himself, his mother and his maternal uncle. His case was that his father Abdul Malik's name appeared in the 1965 voters' list and thereafter in the voters' lists of 1970 and 1977, while his own name appeared in the voters' lists of 2005 and 2010.
The petitioner submitted that he had proved his case with cogent evidence and that, in the absence of rebuttal evidence, the Tribunal ought to have accepted his evidence and held him to be an Indian citizen.
The State, however, contended that under Section 9 of the Foreigners Act, 1946, the burden of proving citizenship rested upon the proceedee and that the petitioner had failed to discharge it. It was also submitted that the written statement was vague and did not mention his date of birth or siblings.
The High Court held that, under Section 9 of the Foreigners Act, the burden of proving Indian citizenship is always upon the proceedee and does not shift.
The Court said, “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.”
The Court further noted that, while exercising jurisdiction under Article 226, it would confine itself to examining the decision-making process and that findings of fact recorded by the Tribunal were not liable to be interfered with in certiorari jurisdiction.
Examining the petitioner's case, the Court found that the written statement was “vague” and had not met the requirements concerning disclosure of the date and place of birth, names of parents and their place of birth and citizenship.
It also noticed inconsistencies in the voters' lists relied upon by the petitioner. In the 1965 voters' list, the projected father was shown as Abdul Malik, son of Ayub Ali, whereas in the 1970 voters' list he was shown as Abdul Malik, son of Aban Ali. In the 1977 voters' list, the name appeared as Md. A. Malek, son of Aban Ali.
The Court also noted that the first voters' list in which the petitioner's name appeared was of 2005, but it did not contain the names of his parents. Though the projected mother deposed that she had six children, there was no mention of any siblings in the written statement.
It further said that reliance upon the EPIC of the projected mother “would be of no avail as EPIC is not a document to prove citizenship.”
As regards the school transfer certificate dated July 15, 2017, the Court noted that it had not been proved by the author of the document or any representative of the school and that it had been issued after a gap of about two decades, which “will itself raise sufficient doubt on its genuinity.”
On the passport, the Court found that it had not been proved in accordance with law and that no personnel from the passport office had adduced evidence regarding its issuance.
It also noted that the passport was issued on May 30, 2013, whereas the reference had been initiated in 2012.
The Court further held, “As regards oral evidence by DW2 and DW3, it is a settled law that such oral evidence without documentary support cannot be accepted as relevant evidence.”
Ultimately, the Bench held, “We are of the view that the petitioner as proceedee had failed to discharge his burden to prove his citizenship.”
It therefore found that the Tribunal's 2019 opinion did not call for interference, dismissed the writ petition and vacated the interim order.
While dismissing the petition, the Court directed the Assam Home Department and the DGP to inquire into the issuance of the passport, cast responsibility and take appropriate steps against the erring personnel, and directed that the action taken be intimated to the Registry expeditiously.
Case No.: WP(C)/1610/2020
Case Title: Ahmed Hussain v. Union of India & Ors.
LL Citation: 2026 LiveLaw (Gau) 166