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Gauhati HC declares Assam man Indian after being declared ‘foreigner’ by the Tribunal

Dated: April 11, 2021

                                                                                                                                                            - by Megha Bhatia

A Foreigners Tribunal in Assam proclaimed a man named Haidar Ali a foreigner despite the fact that he had formed a connection with the names of his father and grandfather on voter lists from 1965 and 1970. 

Haider Ali had refused to create a linkage with other expected relatives in the voters list, according to the Barpeta Tribunal. As a result, the Tribunal determined that he had refused to adequately demonstrate the linkage. 

The Guahati High Court overturned the Tribunal’s decision, stating that the individual did not have to prove ties to any of the relatives listed on the voters list.

The High Court stated that the absence of a reason for a person’s connection to other 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 the aforesaid 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 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 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 stated that the failure to disclose the identities of other relatives and the failure to provide sufficient facts, other than what matter, cannot make a person’s testimony unreliable. As a result, the Court concludes that much of the testimony is “corroborative in nature” and that failure to reveal pertinent information “does not ipso facto lead to the inference that his evidence unreliable.”

The remark was made when a single judge bench led by Justice Kotiswar Singh ruled one Haidar Ali to be an Indian citizen after the Foreigners Tribunal had declared him a foreigner in an order dated 30th January 2019, thereby setting aside the said order.

To be included in the Assam National Register of Citizens, an individual must trace their ancestors back to people who lived in India before the March 24, 1971 cut-off date.

The court also noted that, while tax reports and other documentation do not create title, they are corroborating proof his link with his father and grandparents.

Case before Tribunal

Ali filed a written statement after receiving notification from the Foreigners Tribunal on June 11th 2018, alleging that he was considered a foreigner without the authorities conducting a formal investigation or conducting a field visit. Furthermore, he was never asked to provide any documentation to back up his claims.

Ali said that his grandparents’ names appeared in 1965 and 1970 voter lists with their respective house numbers, and that his parents’ names appeared in 2010 and 2018 voter lists. Furthermore, it was said that his father and other brothers inherited the grandfather's lands, which was supported by tax receipts shown to the Court.

Ali filed a written statement in the Tribunal, demonstrating his electoral identification card and that of his father, both provided by the ECI. Other papers, such as his father’s birth certificate, village certificate, and high school records, were also placed on record.

After reviewing the original documents, the Tribunal found that the petitioner had failed to meet his duty of showing that he is an Indian as prescribed by Section 9 of the Foreigners Act, 1946, and thus proclaimed him a foreigner under Section 2(a) of the Act. Ali had refused to prove his relationship with other people included in the 1970 voter registry, as well as his father and grandparents, according to the Tribunal’s rationale.

Observations of the High Court 

1.The lack of a linkage explanation has little bearing on the credibility of a connection with grandparents. 

After separating itself from the Tribunal’s logic, the High Court states: “In our opinion, non-explanation of the linkage of the petitioner with other whose names were shown along with his grandparents in the voters list of 1970 does not affect the credibility or genuineness of the evidence in the form voters list of 1970, to show the linkage of the petitioner with his grandparents.”

The Court held that Ali’s father is specifically shown to the son of his grandparents in the voting lists of 1965, 1970, and 1971, citing the names of his grandparents as proof that they were Indian citizens.

“Thus, non-explanation of relationship of the petitioner with other person mentioned in the voters list of 1970 cannot be a ground for disbelieving the correctness of the entry of the names of the grandparents in the voters li when the correctness of the entry of the names of the petitioner’s father and grandfather was not questioned. Thus, the plea of the petitioner that his father Harmuz Ali was the son of Nadu Miya stands proved.” The Court observed at the outset. 

2. Observations on the Tribunal’s Activity 

Noting that a written declaration under the CPC is a defence that allows the defendant to respond to the charges, the Court pointed out that in cases before the Tribunal, no such plaint or charge is filed except for reminding the defendant by a “mere notice or summon” provided by the Tribunal claiming that he is not an Indian citizen.

“From the records, it is also seen that after issuing summons to the proceed or before issuing summons to the proceedee, the Tribunal does not examine a of the persons who had made the reference or who had conducted the investigation against the proceedee to hold that the proceedee is a foreign Thus, the proceedee is totally in dark as to how he came to be considered to a foreigner and not an Indian.” The Court observed. 

Furthermore, it was noted that the proceedee should be given every opportunity to produce all of the records in his custody “even at a later date” in order to substantiate his assertion of becoming an Indian citizen. 

The Court found that the identities of Ali’s father’s other family were only called into question through the cross examination:

“This disclosure does not in any way, in our view, shake the credibility of the evidence of the proceedee merely because the same was not disclosed in the written statement or in his evidence-in-chief. On the contrary, this disclosure fortifies his evidence and shows the truthfulness of the witness by not hiding any relationship. The disclosure of this information does not contradict a previous statement for it was never stated by the petitioner nor his father that his father did not have any other siblings.”

3. Non-disclosure of the names of other relatives does not invalidate his proof. 

The reality in question before the Tribunal, according to the Court, was his heritage linkage, not whether he had other relatives. As a result, the Court determined that his failure to mention his other relatives as those of his father cannot be seen as a basis for disbelieving his evidence and the records relied upon by the petitioner.

“All the evidences are corroborative in nature and failure to disclose all the relevant facts does not ipso facto lead to the inference that his evidence unreliable. The more evidences one adduces, the better for him. But there is law nor dictum that if the proceedee does not disclose the names of all the other relatives, other than what matters and does not produce all the relevant evidences other than what matters, his evidence cannot be believed.” The Court observed. 

Furthermore, the Court, while recalling that the rule to date has been that the State provides little to the proceedee but a notification or summon and that the proceedee bears the onus of evidence under Sec. 9 of the Foreigners Act 1946, noted that:

“The Tribunal does not direct the proceedee to produce any document. It is for the proceedee to produce such evidences and documents in support of the claim that he is an Indian. The more credible evidences he produces, the better for him. Yet, production of less evidences cannot necessarily lead to rejection the claim of the proceedee nor drawing of any adverse inference.”

4. Even though no title is created, revenue records are corroborating evidence.

The Court also went ahead to observe: “We are of the opinion that though the Jamabandi and other revenue receipt cannot create the title, nevertheless, these are corroborating evidences to show that the petitioner’s father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971, and as such they we residents of Assam.”

The Court noted, relying on the petitioner’s papers in depth, that the standard of proof in a Tribunal case is preponderance of probability, not proof beyond any reasonable doubt, and that the petitioner has been able to prove that the names of his father and grandfather were seen in 1966 and 1971, thus demonstrating his linkage with them on the basis of voter lists after 1966, The Tribunal cannot dismiss the petitioner’s argument only because any documentary evidence was not shown. 

In light of the above, the Court granted the petition and set aside the Tribunal’s order dated January 30, 2019, declaring Ali to be an Indian rather than a foreigner.