Mental Illness Plea Fails to Rescue Citizenship Claim as Gauhati HC Upholds Foreigners Tribunal's 'Post-1971' Declaration

The Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal declaration, holding that a single OPD prescription did not establish mental illness and that contradictions between the petitioner's testimony and his wife's evidence were fatal to his citizenship claim.

A Division Bench of the Gauhati High Court, comprising Justice Kalyan Rai Surana and Justice Shamima Jahan, dismissed a writ petition filed by Farjul Haque @ Md. Faizul @ Fazlul Hoque, a resident of village Datialbori, district Morigaon, Assam, who sought to set aside an opinion dated 28 March 2017 passed by the Member, Foreigners Tribunal-5, Morigaon. That Tribunal had declared him a foreigner of the post-25.03.1971 stream. The petitioner argued, among other things, that he suffered from mental illness and that this explained contradictions in his evidence. The bench rejected that defence, found multiple irreconcilable discrepancies between the petitioner's own statement and his wife's testimony, and held that the Tribunal's findings of fact did not warrant interference under the Court's certiorari jurisdiction.

The Dispute Before the High Court

The case originates from a doubt notice issued in D/N Case No. 1601/98 dated 22 June 1998 by the Superintendent of Police (Border), Morigaon, who referred the matter to the then Chairman, IMDT, Nagaon. The case was later transferred to Foreigners Tribunal-5, Morigaon, where it was registered as F.T.(D) Case No. 1233/2012 (Old Number) and F.T.(D) Case No. 563/2016 (New Number).

Before the Tribunal, the petitioner claimed to be the son of Late Abdul Jabbar @ A. Jabbar, born and raised in village Datialbori in Morigaon district. He contended that his father had voted in the 1966 and 1971 Assam Legislative Assembly elections from the same address, and that his grandfather had purchased land in Morigaon by a Sale Deed dated 14 October 1957. He produced voter lists from 1966, 1971, 1989, and 1993, sale deeds, a Gaonburha certificate, a Gaon Panchayat certificate, and a school certificate from Dakhin Borbori Bagarijopa L.P. School.

The Tribunal rejected these documents and declared him a foreigner, finding that he had failed to establish a link with his projected father Abdul Jabbar, that the documents produced were not favourable for establishing Indian citizenship, and that his wife had given contrary statements. The petitioner thereupon moved the High Court under Article 226 seeking a writ of certiorari to quash the Tribunal's opinion, or in the alternative, a remand for fresh consideration.

The Mental Illness Argument and the Prescription Issue

The petitioner's central submission before the High Court was that he had been suffering from mental disease and was a patient at the Lokopriya Gopinath Bordoloi Regional Institute of Mental Health, Tezpur, Assam. He produced an OPD ticket from that hospital showing medicines prescribed to him. His counsel, Mr. Z. Hammad, argued that the contradictions in his evidence before the Tribunal were explained by this mental condition and relied on the Supreme Court's decision in Accused X v. State of Maharashtra, reported in (2019) 7 SCC 1, for procedures applicable to mental patients.

The bench examined this claim in detail with reference to the Mental Healthcare Act (MHCA), 2017. Section 105 of that Act provides that if proof of mental illness is produced during a judicial process and is challenged, the court shall refer the matter to a Board of medical experts. The bench noted that the petitioner had never invoked this provision before the Tribunal.

Section 4 of the MHCA, 2017 further provides that every person, including one with mental illness, shall be deemed to have the capacity to make decisions if he has the ability to understand the proceedings and communicate his decisions. The bench observed that the petitioner had never apprised the Tribunal that he required personal assistance under that provision; he had simply placed the OPD prescription on record through his wife.

The bench then examined the prescription itself. It found that “only a prescription is relied upon, which is not sufficient to hold that the proceedee is a psychiatric patient.” Going further, the bench observed that the medicines shown in the prescription, on a bare perusal, reflected treatment for Parkinson's disease—a progressive nervous system disorder affecting movement—rather than a mental illness. The bench was careful to clarify that this observation was not a formal finding of the Court but only a passing observation. Section 3 of the MHCA, 2017 was also noted, which provides that past treatment or hospitalisation in a mental health establishment shall not, by itself, justify the determination of a person's mental illness.

Contradictions in Evidence and Failure to Establish Lineage

Even setting aside the mental illness question, the bench catalogued a series of contradictions between the petitioner's evidence as DW-1 and his wife's evidence as DW-2.

The petitioner stated that his father died in 1986 and that his mother died when he was a child, and that he had one elder brother. His wife, however, stated that her father-in-law died in 1997 and that her mother-in-law was still alive at the time of deposition. She also stated that her husband had four brothers, naming all of them. On the question of land, the wife stated that although her father-in-law had land, it was never transferred to her husband—a statement at variance with the petitioner's own reliance on land documents.

The bench found that these contradictions were not minor. There were multiple discrepancies raising suspicion not just about the petitioner's identity but also about whether DW-2 was genuinely his wife.

On the voter lists, the bench noted that the 1966 and 1971 lists showed Abdul Jabbar as a single voter, without names of other relatives. While the 1993 voter list showed the petitioner as a voter, he was listed as the son of “A. Jabbar”. No voter list was produced showing the petitioner's name alongside his father's in the same entry. Working from the deposition that the petitioner would be approximately 52 years old, the bench calculated that he would have been eligible to vote around 1974–75. Given that both the petitioner and his wife placed the father's death between 1986 and 1997, a voter list showing both father and son should have been available but was not produced.

On the certificates—from the Gaonburha, the Gaon Panchayat President, and the school headmaster—the bench held that none of them were admissible because the respective issuing authorities had not been examined as defence witnesses. The bench relied on the principle stated in Romila Khatun v. Union of India, reported in (2018) 4 GLT 373, that a document's contents must be proved, and that truthfulness of contents cannot be established on the basis of personal knowledge alone.

Because the link with the projected father was not established, the bench further held that the Sale Deed dated 14 October 1957—in which the projected grandfather was shown purchasing land under Myadi Patta No. 249, Dag Nos. 252/253/254/289/290 at Laharighat—could also not enure to the petitioner's benefit.

Burden of Proof and the Scope of Certiorari Jurisdiction

The bench restated two settled principles that together sealed the petition's fate.

On the burden of proof, the bench referred to Section 9 of the Foreigners Act, 1946, which places the burden of proving that a person is not a foreigner squarely on that person, notwithstanding anything in the Indian Evidence Act, 1872. The bench cited the Supreme Court's observations in Fateh Mohd. v. Delhi Administration, reported in AIR 1963 SC 1035, and Ghaus Mohammad v. Union of India, reported in AIR 1961 SC 1526, to the effect that this burden is solely upon the proceedee and never shifts. It also quoted from Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665, where the Supreme Court explained that to establish citizenship, a person must ordinarily furnish evidence of date of birth, place of birth, names of parents, their place of birth, and citizenship—all facts within personal knowledge. The written statement before the Tribunal contained neither the petitioner's date of birth nor any details about his siblings.

On the certiorari jurisdiction, the bench held that a writ court under Article 226 does not exercise appellate jurisdiction; it does not review or reweigh evidence. It may intervene only where there is an error of law apparent on the face of the record, or where the inferior tribunal has acted without or in excess of jurisdiction. The bench drew on the Supreme Court's two-judge formulation in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, reported in AIR 2023 SC 4011, and the Constitution Bench's classic statement in T.C. Basappa v. T. Nagappa, reported in AIR 1954 SC 440. In the present case, the Tribunal had reached its findings on facts; no jurisdictional error or error of law apparent on the face of the record was demonstrated. The bench acknowledged that it had, in the interest of justice, itself examined the factual record, but found the same result.

The respondents' side, represented by Ms. A. Verma (Standing Counsel for FT and Border matters), Mr. C. K. S. Baruah (CGC), Ms. R. B. Bora (Junior Government Advocate), and Mr. N. Kalita appearing for Mr. A. I. Ali (Standing Counsel for ECI), had relied on Sarbananda Sonowal v. Union of India, reported in (2017) 5 GLT 346, Momin Ali v. Union of India, reported in 2017 (2) GLT 1076, and Nur Begum v. Union of India, reported in 2000 (3) GLT 347. These judgments collectively supported the propositions that the written statement must contain all material facts within the proceedee's special knowledge, that a defence witness appearing suddenly during proceedings does not strengthen the proceedee's case, and that the writ court should refrain from reviewing findings of fact.

Order

The Division Bench dismissed WP(C)/5227/2019. The interim order passed earlier in the proceedings was vacated. The Court directed that actions consequent upon the Tribunal's opinion would follow in accordance with law. The records of Foreigners Tribunal-5, Morigaon were directed to be returned forthwith along with a copy of the judgment.