Vague Written Statement and Inconsistent Voter Lists Cannot Discharge Citizenship Burden, Gauhati HC Upholds Foreigner Declaration

A Division Bench of the Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal’s declaration, finding the proceedee’s written statement vague and his documentary evidence riddled with inconsistencies.

The Gauhati High Court has dismissed a writ petition filed by Dabir Rahman @ Dabibur Rahman of Darrang district, Assam, who had challenged a declaration by Foreigners Tribunal No. 4, Darrang, Mangaldai, that he was a foreigner who entered India after 25 March 1971. A Division Bench of Justice Sanjay Kumar Medhi and Justice Pranjal Das, pronouncing judgment on 21 May 2026, found that the petitioner’s written statement before the Tribunal was “absolutely vague” and that the voter lists and other documents he relied upon were marked by serious inconsistencies that he could not explain. The bench held that the Tribunal’s opinion did not call for interference under the certiorari jurisdiction of the High Court under Article 226 of the Constitution of India.

The Foreigners Tribunal Proceeding and the Challenge Before the High Court

A reference was made by the Superintendent of Police (B), Darrang District, against the petitioner, giving rise to F.T. 4 Case No. 83/SPR/2017 and FT Case No. 5022/2011 (Ref. FT Case No. 1193 dated 15.12.2010). The Tribunal proceeded under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 to determine whether the petitioner was a foreigner.

Before the Tribunal, the petitioner filed a written statement on 8 March 2018 along with documents and adduced oral evidence as DW1. The Tribunal, after considering the material, found that the petitioner had failed to discharge the burden cast upon him under Section 9 of the Foreigners Act, 1946 and rendered its opinion on 21 July 2018 declaring him to be a foreign national who entered India after 25 March 1971.

The petitioner then invoked the extraordinary jurisdiction of the Gauhati High Court under Article 226, seeking to set aside the Tribunal’s opinion. The High Court requisitioned the Tribunal’s records by an order dated 21 August 2019.

The Petitioner’s Case: Voter Lists and a Gaonburah Certificate

Shri J.M. Sulaiman, appearing for the petitioner, argued that cogent evidence had been placed before the Tribunal and that, in the absence of any rebuttal evidence from the State, the Tribunal ought to have accepted the petitioner’s proof and held him to be a citizen of India.

The documents exhibited before the Tribunal were: a xerox copy of the 2018 Voter List (Ext-1); a xerox copy of a voter ID (Ext-2); a certified copy of the 1997 Voter List (Ext-3); Legacy Data Code 120-0037-2518 (Ext-4); certified copies of the Voter Lists of 1966 and 1971 (Ext-5 and Ext-6); a Gaonburah Certificate (Ext-7); and an NRC application acknowledgment receipt (Ext-8).

The petitioner’s case was that the 1966 Voter List contained the names of his parents, Jasi Seikh (father) and Moujan Nessa (mother), and that the 1971 Voter List also contained his parents’ names along with that of his brother, Tabibar Rahman. The 1997 Voter List contained the petitioner’s own name. Counsel also relied on a Gaonburah Certificate dated 29 June 2012 to establish the linkage with his father.

The State’s Response: Burden Never Shifts, Rebuttal Not Mandatory

Ms. A. Verma, Standing Counsel for the Home Department and NRC, categorically refuted the petitioner’s submissions. She argued that under Section 9 of the Foreigners Act, 1946, the burden of proving citizenship rests absolutely upon the proceedee, notwithstanding anything in the Evidence Act, 1872, because the relevant facts are especially within the proceedee’s knowledge. Rebuttal evidence, she submitted, is not mandatory in every case and arises only if the proceedee first produces cogent, credible, and acceptable evidence.

She submitted that the written statement filed before the Tribunal was the basic document required to lay the foundation of the proceedee’s case, and that in this instance it was vague: it contained no date or year of the petitioner’s birth and no details of family members. She relied on the Supreme Court’s observations in Sarbananda Sonowal v. Union of India reported in (2005) 5 SCC 665, which set out that a person asserting citizenship must disclose his date of birth, place of birth, names of parents, their place of birth and citizenship, and sometimes details of grandparents.

On the documents, she pointed out that the 1997 Voter List showed the petitioner to be 45 years of age at that time, yet no earlier voter list bearing his name had been produced or proved. She submitted that no credible link had been established with the projected father, and that the Gaonburah Certificate could not be treated as proof of citizenship because the Gaonburah himself had not been examined and the certificate bore an unauthorised use of the National Emblem.

She also relied on Rashminara Begum v. UoI reported in 2017 (4) GLT 346 on the requirements of a written statement, Romila Khatun v. Union of India reported in 2018 (4) GLT 373 on the need to prove both a document and its contents from contemporaneous records, Nur Begum v. Union of India and Ors. reported in 2020 (3) GLT 347 on the supervisory nature of certiorari jurisdiction, and the Supreme Court’s decision in Rupjan Begum v. Union of India reported in (2018) 1 SCC 579 on the two aspects of proving a certificate — authenticity of the document and authenticity of its contents.

How the Bench Reasoned

The Division Bench began by reaffirming the settled position on Section 9 of the Foreigners Act, 1946. The provision contains a non-obstante clause expressly excluding the Indian Evidence Act, 1872, and places the burden of proving that a person is not a foreigner squarely and permanently on that person. The bench extracted the full text of Section 9 and noted that this position had been affirmed by the Supreme Court’s Constitutional Bench in Ghaus Mohammad v. Union of India [AIR 1961 SC 1526] and followed in Fateh Mohd. v. Delhi Administration [AIR 1963 SC 1035].

On the scope of the High Court’s own jurisdiction, the bench was clear that a writ court under Article 226 exercises supervisory, not appellate, jurisdiction. It does not re-weigh evidence or substitute its own view for that of the Tribunal. The bench drew on the Supreme Court’s recent articulation in Central Council for Research in Ayurvedic Sciences and Anr. v. Bikartan Das & Ors. [Civil Appeal No. 3339 of 2023], which laid down two cardinal principles: first, that a High Court issuing a writ of certiorari does not review or reweigh evidence and can only intervene where there is an error of law apparent on the face of the record; and second, that even where an order is found illegal, the High Court may, in exercise of its discretionary extraordinary jurisdiction, mould its final order as public interest and equity demand.

Turning to the facts, the bench found the written statement “absolutely vague” and held that it had not met the requirements set out in Sarbananda Sonowal (supra) — no date of birth, no place of birth, and no details of family members were disclosed.

On the voter lists, the bench identified multiple inconsistencies. In the 1966 Voter List, the father’s name appeared as Jasi Seikh and the mother’s as Moujan Nessa, with the village recorded as Bhelenganari Part No. 54. In the 1971 Voter List, the father’s name changed to Jasimuddin and the mother’s to Matujan, with the village recorded as No. 3 Nangli Char. The projected brother, Tabibar Rahman, was shown as 27 years of age in 1971, which meant he should have appeared in the 1966 list alongside his parents — but he did not. The voter lists of 1989 and 1993, though referred to in submissions, were not exhibited.

The 1997 Voter List, the first to contain the petitioner’s own name, showed him as 45 years old, with his father’s name recorded as Jashim and the village as Puthimari Chapori (PT) — again a different village. The bench found it “intriguing” that a person aged 45 in 1997 had no voter list entry from any earlier year. The gap between the 1971 list and the 1997 list — more than 25 years — was unexplained. The 2018 Voter List was not even a certified copy.

On the Gaonburah Certificate dated 29 June 2012, the bench found two independent defects: the certificate bore an unauthorised use of the National Emblem, and the Gaonburah himself had not been examined to prove it. The bench endorsed the principle from Bijoy Das v. UOI reported in 2018 (3) GLT 118 that oral evidence alone is insufficient in proceedings of this nature and must be supported and corroborated by documentary evidence and contemporaneous records.

The bench also endorsed the requirement, drawn from Rashminara Begum (supra), that a written statement before a Foreigners Tribunal must disclose at the outset all relevant facts specially within the proceedee’s knowledge that have a material bearing on the citizenship claim, and that a party cannot traverse beyond its pleadings.

Having examined the decision-making process of the Tribunal, the bench found no procedural impropriety, no violation of natural justice, no reliance on legally impermissible evidence, and no refusal to admit admissible evidence. The findings of the Tribunal were supported by evidence on record. No error apparent on the face of the record was made out.

Outcome

The Division Bench held that the impugned order dated 21 July 2018 passed by Foreigners Tribunal No. 4, Darrang, Mangaldai in F.T. 4 Case No. 83/SPR/2017 and FT Case No. 5022/2011 (Ref. FT Case No. 1193 dated 15.12.2010) did not call for any interference. The writ petition was dismissed. The interim order passed earlier was vacated. The bench directed that consequential actions upon the Tribunal’s opinion would follow in accordance with law, and that the Tribunal’s records be returned forthwith along with a copy of the judgment.