The Guahati High Court has upheld a declaration that a woman was a foreigner by holding that the documents such as school certificates should be proved by the testimony of the issuing authority.
The Court was considering a writ petition filed by one Sahera Khatun, stated to be aged 42 years, challenging the order passed by Foreigners Tribunal Kamrup on December 1, 2018 declaring her to be a foreigner in the post-1971 stream as per the Assam Accord.
To prove her linkage to ancestors prior to the cut-off date of March 24 ,1971, she had produced 12 documents. Citing a school certificate issued by Head Master of Omkar Sarkar School, Kathara, she said that her date of birth was February 2, 1978 and that her father's name was Sayed Ali. She also produced voters lists of 1966, 1970, 1977,1989, 1997, 2005 and 2017, containing the names of her projected grandparents, parents and siblings.
One Mafidul Islam, projected as brother of the petitioner and one Jaytun Nessa, projected mother of the petitioner gave oral evidence.
The Court noted that the only documents showing the linkage of petitioner with her projected parents and ancestors were the school certificate and certificates issued by the Gaonburahs of Laruajan and Kanhara villages.
These documents were held to be inadmissible in evidence by the Court on the ground that their contents were not proved by the issuing authorities.
"Although an argument can be made that since the school in question at Exhibit-9 is a provincialised school and on that account the Certificate is admissible in evidence, we may observe that a document which is found admissible is not the end of the matter. The content of the same has to stand proved through the legal testimony of the Issuing Authority. In the present case the Headmaster of the school in question was not examined to prove the contents of the Certificate", observed a division bench of Justice Manojit Bhuyan and Parthivjyoti Saikia.
The testimony of the projected brother was discarded by saying that oral evidence, without supporting documents, cannot prove citizenship. The projected mother had not turned up for cross-examination, noted the Court.
"We would observe 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 bench observed.
The Court said that the petitioner had failed to discharge the burden to prove citizenship as per Section 9 of the Foreigners Act and dismissed the writ petition.
"As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (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 her projected parents and/or the grandfather", the bench said.
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