Family Member Being Declared Foreigner Can't Automatically Make Others Foreigners, Separate Proceedings Necessary: Gauhati High Court

In a case where a woman challenged a 2019 order of the Foreigners Tribunal which had declared her and her sons and daughters as foreigners, the Gauhati High Court has set aside the declaration against the children, while upholding the Tribunal's declaration that the woman is a foreigner.A Division Bench comprising Justice Sanjay Kumar Medhi and Justice Shamima Jahan observed, “It is a settled position of law that until a specific reference is initiated against an individual, no orders of declaration as foreigner of such persons can be made by any Foreigners Tribunal…”“In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 24.05.2019 passed by the learned Foreigners Tribunal no. 4, Silchar in F.T. Case No. 105/2015 does not call for any interference qua the petitioner. However, the observation with regard to the sons and daughters of the petitioner, as mentioned above are interfered with and set aside,” the Court further clarified.As per the factual matrix of the case, the petitioner had approached the High Court challenging the opinion dated 24.05.2019 passed by the Foreigners Tribunal, Silchar, which had declared her to be a foreigner post 25.03.1971. Along with her, her sons and daughters were also declared foreigners.Notably, a reference was made by the Superintendent of Police (B), Cachar District, and the Tribunal held that the petitioner had failed to discharge the burden cast upon her under Section 9 of the Foreigners Act, 1946.The counsel for the petitioner submitted that the petitioner could prove her case with cogent evidence and that in the absence of any rebuttal evidence, the Tribunal ought to have accepted the said proof and held her to be an Indian citizen. In this regard, reliance was placed on the documentary evidence including voters' lists, NRC data and other documents to establish linkage with her projected father.Per contra, the Standing Counsel for the State submitted that a proceeding under the Foreigners Act, 1946 relates to determination as to whether the proceedee is a foreigner or not and the burden of proving citizenship rests absolutely upon the proceedee under Section 9 of the Act. It was contended that the petitioner failed to discharge the said burden, as no credible linkage could be established with the projected father. It was further submitted that the certificate issued by the Gaon Panchayat, by no means, could be treated as proof of citizenship and that the written statement lacked necessary details.On consideration, the High Court reiterated, “the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts.” The Court further opined, “the evidence adduced by the petitioner… would not be sufficient to discharge her burden under Section 9 of the Foreigners Act, 1946.”Accordingly, while upholding the Tribunal's opinion declaring the petitioner a foreigner, the High Court interfered with the declaration against her children and set aside that part of the order.The writ petition was disposed of while clarifying, “present order shall not cause any prejudice to the petitioner to file appropriate application under the Citizenship Amendment Act and if the same is done, such application(s) is to be considered in accordance with law.”Case Title: Maya Das v. Union of India & Ors.Case Number: WP(C)/5617/2019 Click here to read the judgment

Family Member Being Declared Foreigner Can't Automatically Make Others Foreigners, Separate Proceedings Necessary: Gauhati High Court

Bhavya Singh

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