Oral Testimony Alone In The Absence Of Documentary Evidence Is No Proof Of Citizenship: Gauhati HC [Read Judgment]

The division bench comprising Justice Manojit Bhuyan and Justice Parthivjyoti Saikia thereby upheld the decision of the Foreigners Tribunal Morigaon dated October 25, 2018, declaring one Nurul Amin to be a foreigner in the post-1971 stream as per the Assam Accord.

To prove his citizenship, the Petitioner had produced 10 documents, viz. Voter List of 1965 and 1970 in the name of his projected father; Voter List of 1997 and 2014 in his and his wife's name; Voter List of 1970 in the name of his wife's father; Gaonburah Certificate confirming his marriage to his projected wife; and Birth Certificates of Appellant's sons and daughters.

These documents were held to be inadmissible in evidence by the Court.

The division bench observed that the voter lists of 1997 and 2014 containing the Petitioner's name and the other two voter lists of 1965 and 1970 containing his father's name concerned different villages. While the former pertained to Muladhari village, the latter pertained to Moiradhwaj village.

A statement regarding shifting from village Moiradhwaj to Muladhar was made before the court, however, the Petitioner did not produce any document to support the same. In this backdrop the court held,

"Mere statement without supporting evidence or documents cannot go to prove that name Abed shown against the name of the petitioner of village Muladhari in the Voter Lists of 1997 and 2014 is the same Abed Ali of village Moiradhwaj in the Voter Lists of 1965 and 1970. Mere statement is not enough to be considered as a reliable piece of evidence. Moreover, the petitioner stated in his evidence that they are three brothers but no sibling came forward as witness to support the case of the petitioner."

The court further refused to consider the oral testimony of the Appellant's wife by holding that the same could not be corroborated by any documentary piece of evidence.

"The statement of DW-2 i.e. Halima Khatun, who claimed to be the wife of the petitioner, cannot be relied upon in the absence of any documents showing relationship between Abed Ali and the petitioner. Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner," the court said.

It continued,

"We would reiterate that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship."

The court also held the Gaonburah Certificate to be inadmissible for the same was not proved by way of oral testimony of the issuing authority.

"Another link document was the Certificate issued by the Gaonburah at Exhibit-E. The Certificate rendered itself as inadmissible in evidence, inasmuch as, the author of the said Certificate was not examined to prove the same and the contents thereof," it said.

Notably, the high court has already held in Rabia Khatun v. Union of India, WP (C) No. 6369/2019 that certificates are inadmissible unless its contents are proved by legal testimony of issuing authorities.

The remaining documents, i.e. Voter List of 1970 in the name of Appellant's wife's father and the Birth Certificates of his children, were held to be of no relevance.

"The Exhibit-F has no relevance in this case. The Exhibits-G, H.I, and J are the birth certificates of the sons and daughters of the petitioner. From the very nature of it, the same do not serve any purpose to the petitioner for establishing citizenship," the court said.

The court observed that the Appellant had failed to discharge the burden to prove citizenship as per Section 9 of the Foreigners Act and the writ petition came to be dismissed.

"As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners Page No.# 4/4 (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to his projected father," the court concluded.

Case Details:
Case Title: Nurul Amin v. Union of India & Ors.
Case No.: WP (C) No. 8640/2018
Quorum: Justice Manojit Bhuyan and Justice Parthivjyoti Saikia
Appearance: Advocate A Roshid (for Petitioner); Advocates G. Hazarika, J. Payeng, B. Das and S. Khanikar (for Respondents)

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