Assam NRC- Citizen Can't Be Declared Foreigner Just Because Linkage Is Not Shown With All Relatives : Gauhati High Court

In an astonishing order, a Foreigners Tribunal in Assam had declared a man named Haidar Ali as a foreigner although he had established the link with the names of his father and grandfather entered in the voters lists of 1965 and 1970.The Tribunal at Barpeta observed that since Haider Ali had failed to establish his linkage with other projected relatives in the voters list. Therefore, the Tribunal held that he had failed to show the linkage properly.This order of the Tribunal was set-aside by the Guahati High Court observing that it was not necessary for the person to show linkage with all relatives mentioned in the voters list.The High Court observed that non explanation of the linkage of a person with other names as shown along with his grandparents names in the voters list of 1970 "does not affect the credibility or genuineness to show his linkage with his grandparents.""What was crucial and required of the petitioner was to prove before the Tribunal was that Harmuz Ali was his father and that his father, Harmuz Ali was the son of Nadu Miya, who were admittedly Indians. The fact that Harmuz Ali was the son of Nadu Miya has been already duly proved by theaforesaid voters lists of 1970 and 1965, genuineness of which was not questioned by the State. Thus, non explanation of relationship of the petitioner with other persons mentioned in the voters list of 1970 cannot be aground for disbelieving the correctness of the entry of the names of the grandparents in the voters list, when the correctness of the entry of the names of the petitioner's father and grandfather was not questioned", the High Court said."What is important to note is that the "fact in issue" before the Tribunal was, whether the petitioner was the son of Harmuz Ali and in turn, was the grandson of Nadu Miya, the father of Harmuz Ali, and whether the petitioner could trace his ancestry to the said Nadu Miya through Harmuz Ali, as Nadu Miya was admittedly an Indian who had been casting his vote since 1966. As such, the fact in issue was not whether the petitioner had other relatives also.Thus, non-mentioning of his other relatives as well as that of his father cannot be a ground for disbelieving his testimony and the documents relied upon by the petitioner. Of course, if the petitioner had disclosed in more detail the family tree, it would rather strengthen his claim, but failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable, nor reduce the credibility of his evidence,when there are other corroborating evidences".Furthermore, the Court also observed that the non disclosure of names of other relatives and non production of relevant evidences, other than what matters, cannot render the evidence of a person unreliable. In view of this the Court held that all the evidences are "corroborative in nature" and failure to disclose all relevant facts "does not ipso facto lead to the inference that his evidence is unreliable."With these observations, a division bench of Justice N. Kotiswar Singh and Justice Manish Choudhury set aside the Foreigners Tribunal's order which declared Haider Ali as foreigner.For the purposes of getting entry in the Assam National Register of Citizens, a person has to trace back lineage to persons who were residing in India before the cut-off date of March 24, 1971.The Court also observed that the revenue records and other documents even though not creating title, are corroborating evidences to show linkage with his father and grandparents.Case Before the Tribunal After the notice from the Foreigners Tribunal was sent to Ali on 11th June 2018, written statement was filed by Ali stating that he was declared as foreigner without the authorities making a proper investigation or a field visit. Moreover, it was submitted he was never asked to produce any documents to substantiate his claims. It was submitted by Ali that his grandparents' names appeared in the voters lists of 1965 and 1970 with their respective house numbers and that his parents name appeared in the voter lists of 2010 and 2018. Furthermore, it was also submitted that the grandfather's property was inherited by his father and other brothers in support of which revenue receipts were produced in the Court. Accordingly written statement was filed by Ali in the Tribunal showing his electoral identity card issued by the ECI along with that of his father. Other documents including Birth Certificate, Village Certificate and High School records showing his father's details were also placed on record. The Tribunal after examining the original records held that the petitioner had failed to discharge his burden of proving that he is an Indian as required under Section 9 of Foreigners Act, 1946 and accordingly, declared him to be a foreigner under Section 2(a) of the Foreigners Act, 1946. The reasoning given by the Tribunal was that Ali had failed to prove his link with other persons...

Assam NRC- Citizen Can't Be Declared Foreigner Just Because Linkage Is Not Shown With All Relatives : Gauhati High Court

Nupur Thapliyal

A person who has proved linkage with parents/grandparents, whose names are in voters lists, can't be declared a foreigner just because he did not show linkage with all relatives.

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