Gayatri Gupta is a law graduate from NALSAR University of Law, Hyderabad, India and is currently working at the Supreme Court of India. She has a keen interest in human rights law and refugee and citizenship law. She worked at Parichay Legal Aid Clinic from January 2020 to March 2022. She may be reached at guptagayatri14@gmail.com.
Introduction
Nivedita Menon has argued that the foundation of citizenship “is primarily based on proof of birth in a heterosexual patriarchal family, an institution that structurally undergirds caste, class, and gender injustice” [emphases mine]. It is this unquestioning acceptance of the heterosexual patriarchal family—based on marriage and the sexual division of labour—that has helped produce and maintain a particular notion of the nation-state and citizen. Menon identifies the familial foundation of citizenship to be the reason why citizenship is exclusionary towards women and is thus an inherently feminist issue. In this article, I examine the legality of the sui generis citizenship determination regime in Assam against the standard of gender equality and anti-discrimination law.[1] Through a qualitative study of Gauhati High Court (‘Gauhati HC’) cases relating to the Foreigners’ Act, 1946,[2]I critically analyse the impact of the seemingly ‘neutral’ rule of demanding documentary evidence to prove citizenship on women proceedees.[3] I conclude that the Foreigners Tribunals (‘FTs’) in Assam operationalise these evidentiary rules to have a discriminatory effect on women litigants.
Understanding indirect discrimination
Articles 14, 15 and 16 of the Indian Constitution form the equality code. The scope of this code is not limited to the formal conception of equality but embodies a substantive notion, whereby existing individual, institutional, and systemic barriers are taken into account to ensure equal protection of the law.Anti-discrimination law, specifically the concept of indirect discrimination, is closely linked to the concept of substative equality [see Nitisha v. UOI, Anuj Garg v. Hotel Association of India, Jeeja Ghosh v. UOI, Vikash Kumar v. UPSC]. Indirect discrimination occurs when a seemingly ‘neutral’ provision, criterion, or practice puts persons belonging to a specific group (having one or more protected characteristics[4]) at a particular disadvantage by not considering the underlying effects of the provision on that group.
Many Supreme Court decisions have affirmed the existence of indirect discrimination. Justice Chandrachud in Navtej Singh Johar, while assessing the constitutionality of Section 377 of the Indian Penal Code, observed that what is relevant is the “effect” the impugned provision “has on affected individuals and on their fundamental rights”. Thus, state action which is facially neutral but has a disproportionate impact upon a particular protected class of persons is prohibited by indirect discrimination. Most recently, in Lt. Colonel Nitisha v. Union of India, indirect discrimination under Articles 14 and 15 was expressly recognized, and the Supreme Court adopted the two-pronged test laid down in Fraser v. Canada for an indirect discrimination enquiry. The first step is to assess whether the impugned rule disproportionately affects a particular group; the second step is to see if this rule has the effect of reinforcing, perpetuating, or exacerbating disadvantage.
Having explained the contours of indirect discrimination law in India, the next section will analyse how apparently neutral procedures, such as those currently employed in Assam’s citizenship determination regime, disproportionately impact women proceedees, and end up excluding them from public participation.
Operation of Foreigners’ Tribunals in Assam
A separate legal regime focused upon ‘kaagaz’ (papers)has been created in Assam to identify ‘foreigners’ and ‘illegal immigrants’. Under the Assamese citizenship determination regime, inserted via Section 6A of The Citizenship Act, 1955 in the aftermath of the Assam Accord, persons of Indian origin who came from Bangladesh before January 1, 1966 and have been ordinarily resident in Assam since then are considered as Indian citizens. Those who came between January 1, 1966 to March 25, 1971 would have to register themselves with the Central Government, and their names would be cut off from electoral rolls for a period of ten years. At the expiry of ten years from their date of registration, they would be considered Indian citizens.
The Foreigners’ (Tribunals) Order, 1964 is a subordinate legislation under the Foreigners’ Act, through which FTs are set up by the Central Government to determine the legal question of whether a person is a foreigner. In 2005, FTs became extremely critical after the Supreme Court struck down the Illegal Migrants (Determination by Tribunals) Act, 1983, and transferred all pending IMDT citizenship cases to FTs. Subject to the limited procedural requirements mentioned in the 1964 FT order, FTs are empowered to regulate their own procedures, raising concerns about due process and rule of law. With the publication of the final NRC list, a case can now come before an FT in three ways: cases referred by the Assam Border Police, ‘doubtful’ voter cases referred by an Election Registration Officer, and the appeals process in the NRC (which is yet to start).
It is important to note that under the Foreigners’ Act, the burden of proof is reversed and placed on the individual to prove that she is not a ‘foreigner’. Due to this reversed burden of proof, an individual is expected to discharge a higher standard of proof by supporting her citizenship claim with a wide variety of documentary evidence. The documents required in FT proceedings can be broadly understood in two categories of legacy and linkage: legacy documents showing the individual or her ancestor’s presence in Assam before March 25, 1971 (such as electoral rolls, land and tenancy records, the 1951 NRC); and linkage documents showing a link between the individual and her ancestors mentioned in the legacy document (such as birth certificates, school leaving certificates, gaonburah certificates).It is this seemingly ‘neutral’ requirement of producing documentary evidence to prove citizenship that is being challenged in this article.
Indirect Discrimination faced by Women in Assam
To test how the ‘neutral’ rule of demanding documentary evidence to prove lineage imposes an onerous burden on women, I analysed a total of 48 Gauhati HC cases from the year 2020. Out of the 48 cases analysed,[5] 30 cases (i.e. 62.5%) had female litigants. Within these 30, more than half (17 cases i.e. 56%) were argued on evidence,[6] and the remaining cases were challenges to ex-parte FT orders. I analysed the 17 cases which were argued on evidence, where the women litigants exhibited documents from as few as two to as many as fourteen. Yet in all the cases except one, the documentary evidence exhibited was held to be ‘insufficient’ and the women were declared foreigners due to a failure in proving linkage. This means that although women litigants were able to exhibit documents showing the presence of their ancestors in Assam before March 25, 1971, they still failed in proving their lineage from these ancestors.
This difficulty in proving lineage is quite understandable considering the socio-economic status of female proceedees. Sexual division of labour and historical public-private divide has identified a man’s role in the public world of politics and paid employment, and a woman’s role in caring and child-rearing at home.Thus, a man’s access to the public sphere is privileged, whereas barriers are placed on a woman’s entry to this public sphere. Consequently, women’s access to documentation used to prove linkage—such as voter lists with both their names and their parents’ names, birth certificates, school leaving certificates etc.—is abysmal.
Intersectional barriers to the access of documentary evidence
As per the National Family Health Survey-5, Assam is one of the twelve states showing a higher prevalence of child marriage than the national average. This indicates that a substantial number of Assamese women, especially in rural areas, get married and move to their matrimonial houses even before they can vote. This assumes significance because married women litigants struggle to produce any documents which link them to their father, and voter lists are one of the very few options available to litigants for this purpose. However, married women’s voter lists end up becoming worthless, since their names are reflected as ‘wife of’ (their husband) instead of ‘daughter of’ (their father) in the records. In all the 17 cases I surveyed, the women litigants had been married for decades, with one of the cases specifically mentioning that the woman was married at puberty.
Despite these ground realities, judges still draw adverse inferences from female litigants’ inability to produce electoral rolls with both their and their parents’ names. For instance, Momila Khatun exhibited as many as 11 documents, including voter lists with her grandparents’ and parents’ names since the year 1966, and her own name in the 2017 voter list, written alongside her husband’s name. She specifically pleaded that“due to lack of knowledge and ignorance of the implications of the voting right she has not been able to enroll her name with the parents.”Yet, after twenty two years of her case referral, Momila Khatun was declared a foreigner as she was unable to show any connection with her parents through “cogent, reliable, and admissible” documents. Despite having no control over the documentation of her life and no agency on when and where her name was entered in the electoral rolls, she was heavily penalised for the same.
The discriminatory impact is exacerbated when we consider the status of women living in poverty belonging from marginalized and oppressed communities. According to the 2011 Census, 86% of Assam’s population lives in rural areas, with the female literacy rate in rural areas being 63%. Consequently, poor rural women are forced to drop out of school at a young age, resulting in the absence of their names on crucial documents such as school leaving certificates. Women’s access to such educational board certificates—which generally record the name of the student along with her parents’ names at the time of 10th/12th Standard—becomes very difficult. From the cases analysed, school certificates were exhibited in only 4 of the 17 cases, with women litigants having generally studied till primary school.[7] In only one case, Shahida Khatun was able to produce her 10th Standard HSLC admit card, showing a link between herself and her father. However, this was still held to be insufficient as the father could not depose to support her case.
For poor, rural, married Assamese women, faced with the impossibility of producing school certificates and voter lists, gaonburah certificates (issued by the village Panchayat Secretary to prove linkage between the daughter and her parents) are commonly presented to prove linkage. However, FTs often impose a higher evidentiary burden on women to produce these documents, and rarely accept them. From the cases surveyed, 12 female litigants exhibited gaonburah certificates and all of them were disregarded. FT members insist that for gaonburah certificates to be admissible (as held by the Supreme Court in Rupajan Begum v. Union of India), their contents must be proved by legal testimonies of the issuing authority i.e. the Panchayat Secretary herself. At this first stage itself, ensuring the presence of the issuing authority to depose becomes an uphill task,[8] as FTs rarely use their power to summon.[9] In the selected cases, even when the litigant was able to secure the gaonburah’s presence, their testimonies were held to be unreliable, with FTs citing non-production of contemporaneous records[10] or insufficiency of knowledge.[11] This shows how the deck is stacked against women in FT proceedings. The uncertainty around how an FT will consider a piece of evidence creates a ‘design of exclusion‘, heightening the precarious citizenship status of Assamese women.
Complete disregard of oral evidence
Lastly, even when one of the parents or a close relative comes forward to orally testify to prove the fact of linkage, their testimony is disregarded in the absence of any documentary evidence about the relationship. I identified 8 such cases in which either a father, mother, brother, or step sister deposed towards the existence of a relationship.[12] Dhiljan Nessa was able to show the presence of her father, Kitab Ali, through electoral rolls of 1966 and 1971. To prove linkage, she submitted a gaonburah certificate and her father even deposed as one of the witnesses, but his testimony was rejected. In 7 of the 8 cases, the Court held that oral testimony sans documentary support was not sufficient to prove linkage. Such a disregard of oral evidence of family members, who directly possess knowledge as to the existence of a parental relationship, goes against Indian Evidence Law. Section 50 of the Indian Evidence Act clearly states that oral evidence and conduct of someone who has “special means of knowledge” for proving the existence of a relationship between two persons is relevant and admissible. Thus, when the oral evidence tested on cross-examination is found to be credible and trustworthy, the tribunal should not insist on documentary evidence to corroborate each and every fact spoken. These basic evidentiary rules are being violated by FTs’ uninformed insistence on documentation.
In a series of identical cases challenging the FT orders, the Gauhati HC disregarded the oral testimonies of close relatives which were brought in to prove linkage in the absence of supporting documentary evidence.[13] However, another two-judge bench of the Gauhati HC insisted that all facts cannot be proved by documentary evidence alone, and that it was essential for FTs to appreciate oral evidence as well. This ratio remained lost in the chaos of FT proceedings until 2021; the bench led by Justice Kotiswar Singh in Haidar Ali v. Union of India held that it is unreasonable to expect people in adverse socio-economic conditions, especially in rural Assam, to have documents like registered birth certificates and in such cases, oral evidence may be led to prove relevant facts for citizenship claims. The bench unequivocally stated that “it is nowhere mandated that he [the litigant] must prove all these facts by documentary evidence only.” [emphases mine] The insistence on considering oral evidence has been reiterated in Md. Sujab Ali v. Union of India and Puspa Khatun v. Union of India.
The Haidar Ali judgment has not been challenged by the State; however, since these contradictory judgments on oral evidence are given by coordinate benches (benches of the same strength), the State can still cherry-pick an older judgment pre-Haidar Ali to argue against litigants. Until the matter is resolved by a full bench (of three Justices) of the Gauhati HC, FTs can continue to devise their own procedures and insist upon documentary evidence, operating in complete darkness from public scrutiny. Thus, documentary evidence has become an elusive piece of the citizenship puzzle, especially for women litigants in Assam.
Conclusion
The case laws reviewed show how the requirement of documentary evidence for proving lineage may appear to be neutral, but when considered in light of historical disadvantages and disenfranchisement faced by women, it places an undue burden upon them. Women are denied the exercise of their right to access justice because of a failure to take into account the pre-existing gender-based disadvantages that they face. When laws do not account for gendered social norms in participation in the public arena, documentation practises, literacy levels, and access to necessary legal processes, the effect of so-called neutral citizenship determination procedures is exclusionary.
The author would like to thank the Editorial Board at Parichay Blog, Arunima Nair, Arushi Gupta, Darshana Mitra, and Rupali Samuel for their suggestions and comments.
[1] Also see Ditilekha Sharma, Determination of Citizenship through Lineage in the Assam NRC is inherently exclusionary, Economic & Political Weekly (Vol 54, Issue 14), April, 2019; Amnesty International, Designed to Exclude: How India’s courts are allowing foreigners tribunals to render people stateless in Asssam (2019); Trisha Sabhapandit & Padmini Baruah, ‘Untrustworthy and unbelievable’: Women and the Quest for citizenship in Assam, Statelessness and Citizenship Review (2021); Saika Sabir, Gender Discrimination in the Indian Citizenship Regime, presented at https://law.unimelb.edu.au/news/alc/video-recordings-research-roundtable-on-citizenship-and-statelessness-in-india
[2] For the case study methodology, the author used the search word “Foreigners Act, 1946” on the SCC database, and narrowed down the results by the court (Gauhati High Court), and the time period (2020). The entire list of 49 cases accessed from SCC can be found here: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.
[3] ‘Proceedee’ is a word used commonly in the Foreigners Tribunal proceedings to refer to the individual who is alleged to be a ‘foreigner’. Another term that is commonly used is ‘Opposite Party’.
[4] ‘Protected characteristic’ is a term in equality law that refers to the personal characteristics, defined in the applicable law (such as race, caste, gender, age etc.), that are legally protected from discrimination.
[5] Serial no. 33 [XXX v. Union of India] has been excluded from the count since it was a suo moto writ petition dealing with decongestion of prisons and detention centres during the pandemic, and did not have any identifiable writ petitioner.
[6] The list of 17 cases are as follows: Jarful Khatun v. Union of India, Raina Begum v. Union of India, Dhiljan nessa v. Union of India, Jayeda Begum v. Union of India, Shahida Khatun v. Union of India, Momila Khatun v. Union of India, Tapuran Bibi v. Union of India, Abia Khatun v. Union of India, Jamala Begum v. Union of India, Farida Khatun v. Union of India, Anur Bibi v. Union of India, Jahanara Begum v. Union of India, Surabala Namasudra v. Union of India, Shipa Begum v. Union of India, Amina Khatun v. Union of India, Golap Banu v. Union of India and Mohila Begum v. Union of India. Available at: https://drive.google.com/file/d/1fcSyrRMLNJuigOCjKCedUqiq-vVZS2I6/view?usp=sharing.
[7] Raina Begum v. Union of India, 2020 SCC Online Gau 4873[Class II]; Fardia Khatun v. Union of India, 2020 5 SCC Online Gau 4735 [“Class I”]; Shahida Khatun v. Union of India, 2020 SCC Online Gau 3097; Shipa Begum v. Union of India, 2020 SCC OnLine Gau 482 .
[8] Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835; Tapuran Bibi v Union of India, 2020 SCC Online Gau 2977; Abia Khatun v. Union of India, 2020 SCC Online Gau 2774; Anur Bibi v. Union of India, 2020 SCC Online Gau 1269; Surabala Namasudra v. Union of India, 2020 SCC Online Gau 473.
[9] Para 4, The Foreigners (Tribunals) Order, 1964. See Jarful Khatun v. Union of India, 2020 SCC Online Gau 3835 wherein the FT rejected the proceedee’s application to summon the Gaonburah.
[10] Dhiljan Nessa v. Union of India, 2020 SCC Online Gau 3668 [“Gaonburah issued the certificate on verbal request though he never maintained official memo number/reference to issue such type of certificate”];
[11] Golap Banu v. Union of India, 2020 SCC Online Gau 202 [“He (Gaonburah) issued the Certificate only on the basis of personal knowledge and not from any records. DW-2 stated that he has known the petitioner when she was about 10 years old”]; Jahanara Begum v. Union of India, 2020 SCC Online Gau 1393 [“Gaonburah admitted to the fact that he does not know the father of the petitioner and further that the petitioner is known to him only since 1996, which is much after the cut-off date of 25.03.1971”]; Amina Khatun v. Union of India, 2020 SCC Online Gau 4191.
[12] Jarful Khatun v. Union of India [brother], Raina Begum v. Union of India [mother], Dhiljan Nessa v. Union of India [Father], Tapuran Bibi v. Union of India [Brother], Jamala Begum v. Union of India [Brother], Farida Khatun v. Union of India [Brother], Jahanara Begum v. Union of India [Brother], Anur Bibi v. Union of India [Step sister].
[13] Rahima Khatun v. Union of India, 2021 SCC Online Gau `106, ¶6; Jarful Khatun v. Union of India, 2020 SCC OnLine Gau 3835, ¶6; Tapuran Bibi v. Union of India, 2020 SCC OnLine Gau 2977, ¶6; Anur Bibi v. Union of India 2020 SCC OnLine Gau 1269; Jahanara Bibi v. Union of India, 2020 SCC OnLine Gau 1269, ¶6. Two-judge benches led by J. Manojit Bhuyyan.
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