The Gauhati high court has upheld a tribunal’s order declaring a 38-year-old Guwahati resident a foreigner, citing inconsistencies in the 15 documents he produced to prove he was an Indian and the burden of proof under Section 9 of the Foreigners Act, 1946. This Section states that the onus of proving citizenship lies on the person if a question arises about whether they are a foreigner.
“Though the petitioner has exhibited 15 (fifteen) 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,” said a bench of justices Kalyan Rai Surana and Shamima Jahan on June 30.
Aminul Hoque, the petitioner, submitted copies of the 1951 National Register of Citizens (NRC), which recorded the names of his grandparents and father, certified copies of voter lists showing his parents’ and his names from 1966 to 2017, land purchase documents from 1973, a Permanent Account Number (PAN), voter IDs, and a school certificate.
Hoque’s father appeared in court and identified the former as his son. But the court held that mere oral evidence without documentary evidence “which is admissible and relevant” was insufficient to prove the two are linked.
The judgment came days after the external affairs ministry’s technical clarification that a passport is not proof of citizenship sparked a debate. The clarification revived a long-standing legal question that has acquired fresh significance amid controversies over electoral roll revisions and citizenship verification exercises.
In Assam, the perceived threat from outsiders has resulted in agitations that have claimed hundreds of lives and shaped citizenship, political and electoral discourse for decades.
In February 2019, a foreigners’ tribunal in Assam’s Kamrup declared Hoque a foreigner. He moved the high court, saying the tribunal pronounced its order “without fair or proper inquiry”.
In his petition, Hoque said that poverty forced him to work as a daily wage labourer in Guwahati. The citizenship status of other members of his family was not immediately clear.
The bench noted that the petitioner’s grandfather had four different names in the records. It added that the names of the grandfather, the father, and the petitioner are not consistently together in the voter lists of the three villages, Dobakura, Ghugudoba, and Hashdoba, where the family has resided over the past nearly six decades.
The court said it appears the defence “structured around” the exhibited voter lists to fill up the gaps. It added that it was pleaded without supporting documents that the family shifted from Dobakura to Ghugudoba and from Ghugudoba to Hashdoba. “To match with the names in the voter lists, it has been pleaded that there was a mistake in the recording of names in the voter lists.”
The court noted that the document showing purchase of land may, at best, be evidence of sale, but cannot be proof that the petitioner proved his link with the purchaser. The high court ruled that “it is well settled” that PAN and voter IDs are not proof of citizenship without supporting documents like income tax records. The school certificate was dismissed, as the person who issued it did not come to depose and support it.
“…the petitioner has not been able to establish that the learned Tribunal had committed any patent error in appreciating the pleadings and evidence on record, or that it considered extraneous materials or that the decision was based on ignorance of law or in disregard of the provisions of law.”
In 2019, the NRC was updated to identify undocumented immigrants who came to Assam after 1971, even as the migration of Bengali-speaking people to the state from what is now Bangladesh dates back to British rule, when they were settled in the fertile tracts for cultivation. The migration continued even after partition, when East Bengal became East Pakistan and, in 1971, Bangladesh.
Ethnic and linguistic tensions in Assam date back to the 19th century, when the British declared Bengali the official language in 1836, before withdrawing the move in 1873 following protests. The 1947 partition and the linguistic reorganisation of states in the 1970s sparked fresh protests against the “outsiders.”
In the 1980s, the six-year agitation against “infiltrators” from Bangladesh ended with the 1985 Assam Accord, which finalised March 24, 1971, as the cut-off date for citizenship. The government also promised to seal the border with Bangladesh and detect and deport undocumented immigrants who entered the state after Bangladesh’s creation in 1971.
The government has used provisions of a 1950 law, the Immigrants (Expulsion from Assam) Act, to bypass foreign tribunals and “push back” those deemed to be “foreigners” to Bangladesh since last year.
