Gauhati HC Upholds Foreigner Declaration, Orders Inquiry Into Passport Issued While Citizenship Reference Was Pending

The Gauhati High Court dismissed a challenge to a Foreigners Tribunal’s declaration and directed a departmental inquiry after discovering a passport was issued to the petitioner while a citizenship reference was already pending against him.

A Division Bench of the Gauhati High Court, comprising Justice Sanjay Kumar Medhi and Justice Pranjal Das, dismissed a writ petition filed by Ahmed Hussain challenging the opinion of the Foreigners’ Tribunal, Nagaon Court No. 7, which had declared him a foreign national who entered India after 25 March 1971. The court found that Hussain had failed to discharge the burden of proof cast upon him under Section 9 of the Foreigners’ Act, 1946, and that the documentary and oral evidence he produced was riddled with inconsistencies. In a separate and pointed direction, the bench ordered the Department of Home, Assam and the Director General of Police, Assam to inquire into how Passport No. K5157665 was issued to the petitioner in May 2013 — after the police reference initiating citizenship proceedings against him was already on foot in 2012.

The Tribunal Proceedings and the Challenge Before the High Court

The matter began when the Superintendent of Police (B), Hojai, made a reference against Ahmed Hussain, giving rise to F.T. Case No. F.T./L/Case No. 1296/2016, which arose from SP’s Case No. 731/2012. Before the Foreigners’ Tribunal at Sankardev Nagar, Hojai, Hussain was the proceedee. He filed a written statement on 13 March 2019 accompanied by documents and examined three witnesses in his defence — himself as DW1, his mother Rejiya Begum as DW2, and his maternal uncle as DW3.

The Tribunal, after considering the evidence, held that Hussain had failed to discharge the burden placed upon him under Section 9 of the Foreigners’ Act, 1946. By its order dated 25 October 2019, it declared him a foreign national post 25 March 1971. Hussain then filed WP(C)/1610/2020 before the Gauhati High Court under Article 226 of the Constitution of India, seeking to set aside the Tribunal’s opinion.

Evidence Relied Upon by the Petitioner

Before the High Court, Hussain’s counsel Shri J.M. Sulaiman pointed to a substantial body of material. Fifteen exhibits were placed on record, including certified copies of voters lists from 1965, 1970, 1977, 2005, 2010 and 2016; two Electoral Photo Identity Cards; a Transfer Certificate from Nur Nagar LP School; a residency certificate issued by the Gaon Burah; a revenue paid receipt; an affidavit regarding the petitioner’s grandfather’s name and year of birth; a sale deed; and a passport valid from 30 May 2013 to 29 May 2023.

The argument was straightforward: the petitioner had produced cogent documentary evidence, no rebuttal evidence had been led by the State, and the Tribunal ought therefore to have accepted the proof and declared him a citizen. Sulaiman emphasised the voters lists showing the name of Hussain’s father Abdul Malik from 1965 onwards, the 2005 and 2010 voters lists naming the petitioner himself in Charing Pathar, Nagaon district, and the passport as proof of citizenship linkage.

The State’s Position on Burden of Proof and Documentary Gaps

Shri G. Sarma, Standing Counsel for the Home Department, categorically refuted that position. He submitted that under Section 9 of the Foreigners’ Act, 1946, the burden of proving Indian citizenship lies absolutely on the proceedee and does not shift, regardless of whether the State adduces rebuttal evidence. Rebuttal evidence, he argued, is not mandatory in every case — it becomes relevant only once the proceedee first produces evidence that is cogent, credible and inspiring of confidence. Hussain’s evidence, he submitted, had not cleared even that threshold.

Sarma relied on the observations of the Supreme Court in Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665, where it was held that to establish citizenship, a person must ordinarily give evidence of date of birth, place of birth, name of parents, their place of birth and citizenship, and sometimes details of grandparents — all facts within the personal knowledge of the proceedee, not of State authorities.

He pointed to specific defects. The written statement filed on 13 March 2019 was vague: it did not state the petitioner’s date of birth, mentioned no siblings, and did not lay the factual foundation that Section 9 and Sarbananda Sonowal require. On the voters lists, the 1965 list showed the father as Abdul Malik son of Ayub Ali from Katigorah, but the 1970 list showed him as Abdul Malik son of Aban Ali, and the 1977 list as Md. A. Malek son of Aban Ali — different grandfather names and a changed village. The 2005 voters list in which the petitioner first appears does not contain his parents’ names. No voters list shows the petitioner and his mother together.

The School Transfer Certificate (Ext-10), dated 15 July 2017, was attacked on two grounds: it bore the State Emblem without authority, and it was issued approximately two decades after the events it purported to record without examination of its author or any school representative. The residency certificate and related Gaon Burah certificates were similarly faulted for relying on the same reasoning the court had adopted in Khudeja Khatoon v. Union of India and Ors., 2018 (3) GLT 347, which requires both the document and its contents to be proved in accordance with law — mere filing and marking as an exhibit does not suffice.

On the passport, Sarma noted that Passport No. K5157665, effective from 30 May 2013, was issued after the police reference against the petitioner had already been initiated in 2012 — and it was not proved by producing any personnel from the passport office.

The Scope of Certiorari Jurisdiction

The bench situated its review within the well-established limits of Article 226 jurisdiction. Justice Medhi, writing the judgment, reiterated that a writ court in certiorari does not act as an appellate court. It does not re-weigh evidence or substitute its own appreciation of facts for that of the Tribunal. Findings of fact reached by a Tribunal after examining evidence are generally immune from interference unless there is a jurisdictional error, a breach of natural justice, reliance on legally impermissible evidence, refusal to admit admissible evidence, or a finding wholly unsupported by any evidence at all.

The bench drew on two lines of authority. The earlier Gauhati High Court decision in Nur Begum v. Union of India and Ors., 2020 (3) GLT 347, had articulated that the certiorari jurisdiction is supervisory and not appellate and that the writ court would refrain from reviewing findings of fact where no procedural impropriety or illegality was demonstrated. The bench also cited the recent Supreme Court decision in Central Council for Research in Ayurvedic Sciences and Anr. v. Bikartan Das and Ors. (Civil Appeal No. 3339 of 2023), which restated two cardinal principles: first, that a High Court in certiorari does not review or reweigh evidence and may not substitute its own views; and second, that the extraordinary remedy under Article 226 is discretionary and must be moulded keeping equity and public interest in view.

The court also referred to the constitutional bench decision in Ghaus Mohammad v. Union of India (AIR 1961 SC 1526) and the subsequent decision in Fateh Mohd. v. Delhi Administration (AIR 1963 SC 1035), which affirmed that where an order under the Foreigners’ Act is challenged, the burden of proving non-foreigner status lies upon the person against whom the order is made.

The Court’s Findings on the Evidence

Applying these principles, the bench found that the written statement was vague and did not meet the requirements laid down in Sarbananda Sonowal. It lacked the petitioner’s date of birth, made no mention of siblings, and failed to establish the basic factual foundation of the claim.

The inconsistencies in the voters lists were, in the court’s assessment, fatal. The 1965 list named the grandfather as Ayub Ali; the 1970 and 1977 lists named him as Aban Ali. In the 1970 list, a woman named Anowara Bibi appeared alongside the projected father, described by counsel as a step-mother — but she was shown as 37 years old compared to the projected father’s 35 years. No voters list placed the petitioner and his mother together. No voters list of the projected maternal uncle existed prior to 2005 — where DW3’s age was shown as 37 — and there was no explanation for the absence of earlier records.

DW2’s deposition that she had six children was undermined by the written statement’s complete silence on siblings. DW3’s evidence that the petitioner had been living with him since age four was contradicted by the 2005 and 2010 voters lists, which did not carry the mother’s name despite listing many other individuals from the household or locality. The mother’s EPIC was held to be of no evidentiary value to prove citizenship, since an EPIC is not a citizenship document.

The School Transfer Certificate was discarded because its author was not examined and it was issued after a gap of approximately two decades — sufficient, the bench held, to raise serious doubt about its genuineness. The passport was not proved through any official from the passport office. The bench also held, adopting the reasoning from Nur Begum, that oral testimony without documentary support is wholly insignificant in proceedings under the Foreigners’ Act, 1946 and the Foreigners (Tribunals) Order, 1964. The bench held that the petitioner as proceedee had failed to discharge his burden to prove his citizenship.

The Passport Inquiry Direction

Even as it dismissed the writ petition, the bench flagged a matter it described as intriguing. Passport No. K5157665 had been issued to the petitioner on 30 May 2013. Yet the police reference questioning the petitioner’s citizenship had been initiated in 2012, before the passport was granted. A mandatory requirement for passport issuance is a police verification. The bench stated that it could not comprehend how a favourable police verification report could have been given when the petitioner’s citizenship was already under active question through the very reference that generated the Tribunal proceedings.

The court directed the Department of Home, Assam and the Director General of Police, Assam to inquire into the matter, fix responsibility, and take appropriate action against erring personnel. The action taken is to be reported to the Registry of the High Court expeditiously.

Order

The writ petition was dismissed. The interim order passed earlier in the proceedings was vacated. The bench directed that consequential actions following the Tribunal’s opinion would proceed in accordance with law. The records of F.T. Case No. F.T./L/Case No. 1296/2016 were directed to be returned to the concerned Foreigners Tribunal forthwith, along with a copy of the judgment.