In the High Court of Gauhati WP(C) 6369/2019 Petitioner Rabia Khatun Respondents The Union of India and 5 Ors. Date of Judgement 28th February 2020 Bench Hon’ble Mr. Justice Manojit Bhuyan and Hon’ble Mr. Justice Parthivjyoti Saikia
Facts of the Case
Rabia Khan, the petitioner was declared to be a foreigner by the Foreigner’s Tribunal of Sonitpur, Assam and that she has entered into Assam illegal on or after 25th March 1971. She supplied with four documents to support her claim that are required as per section 9 of the Foreigners Act, 1946. The exhibits were a photo identity card, of the petitioner’s projected father, the name of the petitioner’s grandfather mentioned in the electoral roll of 1965, and a marriage certificate and a Gaonburah certificate issued by the Gaonburah of the village of Jia Gabhoru, Sonitpur, Assam. However apart from these documents, the petitioner failed to provide with any independent witnesses to support her case. Further the documents provided by her were not legally testified by the issuing authority. Thus, aggrieved by the order of her being declared a foreigner, the petitioner filed the writ petition.
- Whether the Foreigners’ Tribunal has made an error in declaring the petitioner as a foreigner?
- Whether the evidence can be admitted, without a testimony from the issuing authority, for the purpose of proving citizenship?
Arguments for the Petitioner
- The petitioner contended that she has provided with sufficient evidence to prove that she is a citizen of India.
- The documents provided by her which clearly provide that her family, i.e. her father and her grandfather were citizens of India, and thus she was also a citizen of India.
Arguments for the Respondents
- The respondents contended that the petitioner failed to provide with any witnesses apart from the documents.
- Further the documents, themselves are not sufficient to prove that she is a citizen, as she failed to submit a voter list, with her name along with the projected father and grandfather as voters.
- The photo identity card is not treated as a valid document to prove citizenship. The other documents i.e. the marriage certificate, the Gaonburah certificate also cannot be accepted as these have not been legally testified by the authority issuing them.
- The petitioner failed to make an attempt in producing the document, voter list etc before 25th March 1971, which shows of the projected father existing in India.
- Thus, as the petitioner failed to prove a linkage with her projected father or grandfather and discharge the burden of proving that she is a citizen of India as per section 9 of the Foreigners Act, 1946, she is not a citizen of India.
- The court held that the petitioner failed to dispense her burden as per the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, by which the burden to prove the citizenship is upon the proceedee. The crucial aspect to provide a link with the projected grandfather and father was not proved by the petitioner.
- The certiorari jurisdiction of the writ court is supervisory and not appellate in nature and thus the court refrains from looking into the facts and circumstances of the case.
- The order of the tribunal has not been passed, without providing for sufficient opportunity of being heard, there has not been any violation principles of natural justice and it does not suffer from any illegality.
- As the petitioner failed to prove of an errors or discrepancies which require the interference of the court, there is not merit in the writ petition, therefore it stands dismissed.
“The views of the authors are personal“