The Gauhati High Court held that producing 16 documents alone cannot establish Indian citizenship if they fail to satisfy the legal burden under the Foreigners Act. The Court ruled that the person claiming citizenship must prove they are not a foreigner.
The Gauhati High Court, while deciding a writ petition, observed that although the petitioner had presented 16 documents to establish his citizenship, he failed to prove that he is an Indian citizen.
The court noted that these 16 documents did not appear to help the petitioner establish that he is not a foreigner but an Indian citizen, as required under Section 9 of the Foreigners Act, 1964. It further held that the burden of proving citizenship lies with the person when a question arises as to whether they are a foreigner.
This order was passed by a bench comprising Justices Kalyan Rai Surana and Shamima Jahan on June 30.
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The order said,
“Though the petitioner has exhibited 16 documents as exhibits, the same does not help the petitioner to establish that he has been able to discharge his burden as required under Section 9…to prove that he is not a foreigner but an Indian citizen,”
The case related to a petition filed by Aminul Hoque, who challenged a Foreigners Tribunal, Guwahati order dated February 28, 2019, which declared him a foreigner.
Hoque relied on several documents, including copies from the 1951 National Register of Citizens (NRC) that listed the names of his grandparents and father, certified voter list copies showing his own and his parents’ names from 1966 to 2017, land purchase documents from 1973, a PAN, voter IDs, and a school certificate.
The Assam NRC was completed in 2019, but it has not yet been notified. The petitioner argued that the NRC should be used to determine genuine Indian citizenship versus illegal immigration.
Hoque claimed that his family has been residing in Assam for generations. His father testified in court and identified him as his son. However, the tribunal and the court found that oral evidence alone, without documentary proof that is admissible and relevant, was not sufficient to establish the required linkage.
A foreigners’ tribunal in Kamrup had declared Hoque a foreigner in February 2019, following which he approached the high court.
Hoque’s lawyer argued that the petitioner was a migrant worker and that the declaration of “foreigner” was based on discrepancies in the spelling of the petitioner’s father and grandfather’s names in certain documents.
Regarding those name variations, the bench stated,
“It appears that to fill up the gaps, the defence of the petitioner is structured around the exhibited voters’ lists. Without the support of any document, it has been argued that there was a shifting of the family from Dobakura to Ghugudoba and Ghugudoba to Hashdoba. To match the names in the voter’s lists, it has been argued that there was a mistake in the recording of names in the voter lists,”
The bench also noted that the petitioner produced a school certificate issued by the headmaster of Hashdoba Anchalik High School on 20.10.2017, which mentioned that the student had left school in 1999.
However, the court held that the person who authored the certificate did not step into the witness box to support it.
Case Title: Aminul Hoque v Union of India & Ors.