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Foreigners Tribunal: Supreme Court dismisses appeal filed against Gauhati HC order

A division bench of Justices Vineet Saran and Dinesh Maheshwari dismissed the petition on merits and also on grounds of a delay of more than 568 days, wherein the petitioner failed to satisfy the bench that the High Court erred in affirming the order passed by foreigners tribunal.

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ILNS: The Supreme Court has dismissed the plea filed by a woman against the order of the Gauhati High Court which had dismissed her appeal against the order of Foreigners Tribunal, which had said she is suspected to be a foreigner since 1971. 

A division bench of Justices Vineet Saran and Dinesh Maheshwari dismissed the petition on merits and also on grounds of a delay of more than 568 days, wherein the petitioner failed to satisfy the bench that the High Court erred in affirming the order passed by foreigners tribunal and failed to check the authenticity of documents such as certified voter list of 1965 and certificate issued by Secretary of Gaon Panchayat District Nagaon. 

In the present case, the petitioner was suspected to be a foreigner post March 25, 1971, and the onus was upon her to prove that she is an Indian citizen and not a foreigner, a reference was moved by the authority concerned seeking the clarity of the status of the petitioner before the Foreigners Tribunal, Nagaon. 

To substantiate her claim being an Indian citizen by birth, the petitioner produced the certified copy of voter list of 1965, in order to establish her lineage with projected parents, and a certificate issued by Secretary of Gaon Panchayat, District Nagaon. Moreover, other certificates issued by Gaon Burah of Erakapilli Village was shown by the petitioner before tribunal as noted by the High Court and this bench acknowledged the same. 

But importantly, aforesaid certificates were not proved by respective authors. The petitioner projected Rustom Ali and Malekjan as her father and mother respectively with their residential address at Village Lengeribori Gaon.

During the hearing today, the bench had questions.

Justice Vineet Saran: How can you justify they are your parents?

Counsel: 1965 certificate suggests so. The issue of parents is undisputed. Voter list  – we have produced NRC Data 70871 , but that have been declined. Also produced certified copy of voter list.

Justice Saran: Who certified and issued such list? How voter list can be authenticated by you? You show us, it is issued by government. We have seen papers carefully, simple copy cannot be relied upon.

Justice Saran: Have you filed certify copy of documents before HC as well?

Counsel for petitioner: I have to check.

Justice Saran: Have you filed before this court also?

Counsel: No

Justice Maheshwari: The said village is not yours, not of your parents and husband too.

Counsel: Your lordship, grant me the opportunity to file certified document before this court.

Justice Saran: Mr Counsel, you had the opportunity to file certified documents before this court also? Why did not you do it at the time of filing petition?

The  Gauhati High Court have drawn attention to the issue of documents submitted by ‘suspected foreigners’ being deemed insufficient by Foreigners Tribunals to establish Indian citizenship. 

These tribunals, quasi-judicial authorities in Assam, have been deciding on matters pertaining to citizenship in order to identify foreigners. 

The tribunal vide its order dated 30.06.2017 reached the conclusion that the defence witness of the petitioner has failed to discharge its burden as enshrined in Section 9 of Foreigner Act,1946 to prove that he is an Indian citizen. The division bench of High Court upheld the Foreigner Tribunal order and held, “the petitioner failed to produce any voter lists of her parents between year 1965 and 2010 showing the names of her parents in voter list of said period.”

The High Court held that –“ On further perusal of the records, we find that except the certified copy of the Voter List of 1965 showing the names of Rustom Ali and Malekjan as her parents, no further Voter List showing the names of her parents are relied nor exhibited by the petitioner and also lineage which the petitioner pleaded to be derived from her projected parents cannot be established by calling the Gaon Burah from a village other than Garu Khuti.”

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Section 9 in The Foreigners Act, 1946 deals with the burden of proof. It says: “If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.”

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