Voters' lists with shifting names and ages do not establish continuous presence

A Division Bench including Justice Kalyan Rai Surana concurred with the Foreigners Tribunal that the petitioner is a foreigner of the post-1971 stream, and cancelled his bail.

A resident of Barpeta district who relied on a series of electoral rolls to prove he had always been in Assam has failed to upset the Foreigners Tribunal's opinion that he is a foreigner who entered after 25 March 1971. A Division Bench of the Gauhati High Court, in a judgment authored by Justice Kalyan Rai Surana, held that voters' lists for different villages, separated by gaps of five years, carrying conspicuous variations in the names and ages of voters and disclosing nothing about the whole family, dislodge rather than establish a person's continuous presence in a particular area. The writ petition was dismissed and the bail granted to him in 2020 stands cancelled.

A tribunal reference from 1998

The petitioner, a resident of Village Chandanpur in Barpeta district, challenged an opinion dated 17 September 2018 of the Member, Foreigners Tribunal No. 7, Barpeta, in Case No. F.T. 262 of 2016, which corresponds to an earlier case under the Illegal Migrants (Determination by Tribunals) regime numbered 6248 of 1998. The Tribunal held him to be a foreigner of the post-25 March 1971 stream.

The writ petition, WP(C) No. 9121 of 2019, was filed under Article 226 against the Union of India through the Ministry of Home Affairs, the Election Commission of India, the Commissioner and Secretary to the Government of Assam in the Home Department, the Superintendent of Police (B) and the Deputy Commissioner of Barpeta, and the State Coordinator of the National Register of Citizens. Mr. N. Uddin, Mr. G. Sarowar and Mr. M. Islam appeared for the petitioner; the Assistant Solicitor General of India appeared along with standing counsel for the NRC, the Election Commission and the Foreigners Tribunal.

The gap between 1977 and 1997

The linkage case itself had a hole in it. The judgment records that the petitioner failed to bridge the gap of the missing linkage from 1977 to 1997, despite producing a Gaonburah certificate.

The evidence of his father, examined as DW2, created a further difficulty. It emerged that the petitioner's grandfather probably died in 2008 — DW2 admitted in cross-examination recorded on 1 August 2018 that his own father had passed away about eight years earlier. Yet not a single voters' list after 1966 could be produced bearing the grandfather's name as a voter. A man who lived until 2008 should appear on rolls through four decades; his absence from all of them, the Bench held, renders the evidence doubtful.

Oral testimony alone proves nothing here

Counsel for the petitioner pressed the oral evidence of DW2: his name appears in the voters' list, and the petitioner being his son, that establishes the petitioner is the son of an Indian citizen.

Against that the Bench applied its own decision in Nur Begum vs The Union of India, 2020 (3) GLT 347. There a woman claiming to be the petitioner's mother gave evidence, and the Court held it could not be relied on without documents showing her relationship to the projected grandfather, father or the petitioner. In a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, that judgment holds, the evidentiary value of oral testimony without documentary support is wholly insignificant, and oral testimony alone is no proof of citizenship.

Applying it, the Bench held the evidence of DW2 was not sufficient to prove the petitioner is an Indian citizen, for want of documents substantiating continuous residency or continuous eligibility as a voter from 1970.

Where the burden sits, and that it never moves

The judgment then set out the rule that governs these references. Under Section 9 of the Foreigners Act, 1946, where a question arises whether a person is or is not a foreigner, the onus of proving that he is not lies upon that person — and the provision carries a non-obstante clause making the Indian Evidence Act inapplicable. The burden on a proceedee to show he is an Indian citizen is always his and never shifts. On that footing the petitioner had, in the Bench's words, miserably failed. His written statement was found to be absolutely vague and not to meet the requirements laid down by the Supreme Court.

Why the electoral rolls did not carry the case

The proof of citizenship in these references usually rests on linking a claimant to a person named in a pre-1971 record, and then showing continuous presence. The petitioner's material was a run of voters' lists.

The Bench held that such lists are not by themselves enough — its reasoning is that an entry in an electoral roll is not a sine qua non to establish citizenship. It then explained what the particular lists before it did and did not show. They were lists for different villages. They came at gaps of every five years. Across them there were conspicuous variations in the names and the ages of the voters. And there was no disclosure of or about the entire family.

Taken together, the judgment holds, that pattern dislodges the continuous presence of a particular person in a particular area as a voter. The documents that were meant to prove the petitioner had always been where he said he was instead undercut the claim, because the person they describe keeps changing.

Order

The Bench recorded its concurrence with the Tribunal's decision that the petitioner is not an Indian citizen and is a foreigner of the post-25 March 1971 stream. The challenge to the impugned opinion failed and the writ petition was dismissed, with the consequences of the Tribunal's order of 17 September 2018 to follow.

The bail order of 13 May 2020 stands cancelled. There was no order as to costs. The Registry was directed to send the Tribunal's record back, with a copy of the judgment, to be made part of the Tribunal's record for future reference.