Jasmin Begum @Jesminara Begum v. Union of India, SLP Civil No. 1564/2020

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Date of decision: 25.09.2019

Court: Gauhati High Court

Judges: Justice Manojit Bhuyan and Justice Ajit Borthakur

Summary: The Gauhati High Court upheld the order of a Foreigners Tribunal that declared the Petitioner as a foreigner. The High Court considered the evidence placed on record by the Petitioner to be insufficient for proving her citizenship, stating that there were no errors apparent on the face of record that warranted interference with the Foreigners Tribunal order.

Facts: The Foreigners’ Tribunal, in its order dated 25.01.2019, declared the Petitioner to be a foreigner, having illegally entered into India (Assam) after 25.03.1971. In accordance with Section 9 of the Foreigners Act, 1946, the Petitioner presented 11 documents as evidence before the Foreigners’ Tribunal to prove that she was not a foreigner. Section 9 of the Foreigners Act places the burden of proof upon the person to prove that they are not a foreigner. Apart from the documents, the Petitioner also presented two witnesses: Mustafa Saiful Islam, the projected uncle of the Petitioner and Abdul Latif, the projected husband of the Petitioner.  

First, the High Court found the documentary evidence to be insufficient to prove the Petitioner’s linkage to her projected parents. Although the names of the alleged parents appeared in the voter lists of 1965, 1970, 1997 and 2018 from different villages, no voter lists were produced that reflected the name of the Petitioner to show the relationship with her projected parents. The mother’s name in the voter’s lists had discrepancies, which is the reason that the court disbelieved the Petitioner’s claim that the projected mother was her mother. Further, the voter’s lists only had the names of the projected parents, and not of the Petitioner herself. Thus, the lists were considered to be inadequate to establish the Petitioner’s linkage to her parents.

Second, the HC did not accept the Jamabandi certificate on the ground that the same did not stand to be proved by the means of any related sale deed showing that the plot of land in question, which the Petitioner claimed to have inherited, had been purchased by her projected father on any date prior to the cut-off date of 25.03.1971. So, the Jamabandi document was considered to be not relevant to establish lineage to a predecessor prior to 25.03.1971. The handwritten Jamabandi was also not held to be relevant as it could not relate to the projected father or mother of the Petitioner.

Third, the HC also held that certain documents were inadmissible, namely certificates issued by the school and the village government, because the authors of the said certificates had not been examined to prove the contents thereof. 

Fourth, it held that the oral evidence of the two witnesses could not be considered as admissible evidence since, “in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship” (page 5). The HC dismissed the oral testimony as it could not be a proof of citizenship without the support of documentary evidence. Thus, the HC upheld the Tribunal’s order, finding that the Petitioner had failed to discharge her burden of proof under Section 9. 

The HC also did not review the Tribunal’s finding of facts since “the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal” (page 5). In other words, it held that while issuing a writ of certiorari, courts do not review findings of facts, even if they are erroneous. 

Holding: As per the HC, there was no error apparent on the face of record to warrant interference with the FT order. According to the Court, “No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all” (page 5).

The Petitioner filed a Special Leave Petition (SLP) before the Supreme Court, challenging the order passed by the Gauhati High Court. The SC allowed the Petitioner to withdraw the SLP and file a review petition before the Gauhati High Court. It also permitted her to approach the Supreme Court, again, in case the review petition fails. 

Significance: The rejection of the oral and documentary evidence by the Gauhati HC was improper. The court failed to consider that the Petitioner had presented admissible and sufficient evidence to prove her linkage to one of her parents.   

First, the Gauhati HC failed to appreciate some of the evidence on record. The Petitioner had presented documents to establish linkage with both her parents. As per the Court, the evidence had failed to establish the Petitioner’s linkage to her mother. However, the Court overlooked the fact that some of the evidence was adequate to establish a linkage to her father. Since her father’s name was present in the voter’s lists of 1965, 1970, the Petitioner was the descendant of a person living in Assam prior to 1971. Thus, establishing linkage to her father should have been sufficient to prove her citizenship under Section 3(b) of the Citizenship Act, 1955. While the Petitioner could not establish linkage with her mother since the latter’s name had discrepancies in the voter’s lists, there were no such discrepancies in her father’s name in the lists. The father’s name in the certified voter’s lists should have been considered as evidence to establish linkage.

Second, the HC was also incorrect in finding that the Petitioner’s husband’s oral testimony was inadmissible. The Petitioner’s husband orally testified to establish the linkage between the Petitioner and her father. As per Section 50 read with Section 59 of the Indian Evidence Act, oral evidence of a person who has special means of knowledge is admissible to prove the existence of a relationship between persons. In fact, courts have held that if the oral evidence is given by a person who has special means of knowledge about the relationship, such evidence is admissible. The husband, by virtue of his marriage to the Petitioner, satisfies this requirement and his testimony was therefore admissible. Thus, the oral testimony did not need to be supported by documentary evidence and was admissible ipso facto. Even then, the HC’s stance that it was not supported by documentary evidence was wrong since the oral testimony was also backed by the voter’s lists having the father’s name. 

Table of Authorities:

  1. Jasmin Begum @Jesminara Begum v. UOI, W.P. (C) 3084/2019

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by Radhika Dharnia.

Sujab Ali v. Union of India, WP(C)/2221/2020

Read the judgment here.

Date of decision: 20.08.2021

Court: Gauhati High Court

Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia

Summary: The Gauhati High Court quashed an order passed by the Foreigners Tribunal, declaring the petitioner to be a ‘foreigner’ who entered India after 25.03.1971. The High Court held that the order neither demonstrated proper consideration of the Petitioner’s evidence nor provided sufficient reasons for rejecting it. The matter was remanded back for fresh hearing and the Petitioner was released from detention subject to conditions.

Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that he was a ‘foreigner’ who entered India after 25.03.1971. In response, the Petitioner submitted that he is a ‘citizen’ and produced 4 witnesses and 39 documents to support his case. Since he was born on 11.01.1992, he submitted evidence to trace a lineage to his parents and establish that they were born in India prior to the cut-off date of 24.03.1971. This means that the Petitioner was seeking to prove that his parents are citizens under Section 6A of the Citizenship Act, 1955 and that he is a descendant of ordinary residents of Assam prior to 01.01.1966 or 25.03.1971. The FT did not consider the evidence as admissible and did not provide reasons for rejecting the documents and witness testimonies. It also held that the evidence did not prove the link between the Petitioner and his alleged parents, grandparents or great-grandparents. The FT declared the Petitioner as a ‘foreigner’ who entered India after 25.03.1971. Accordingly, it ordered for his detention, deportation and the deletion of his name from all voter lists.

The Petitioner filed the present writ petition challenging this order. The Petitioner contended that the FT did not assess and properly consider the evidence before it. The counsel on behalf of the FT rebutted this argument by citing Section 9 of the Foreigners Act, 1946. Section 9 places the burden of proof on the person considered to be a ‘foreigner’ to show that he is not a ‘foreigner’.

Holding: The High Court examined the FT’s order. First, it held that,“The Tribunal, while referring to all the 39 exhibits, has not described as to why…the documents…were not accepted by the Tribunal. The Tribunal did not give reasons as to why the exhibits are not admissible in evidence. What is also noticed is that the oral evidence by four (4) witnesses produced by the petitioner including himself have been disbelieved without giving any reasons” (paragraph 12). In other words, the High Court held that the FT did not provide reasons for why it rejected the documentary or oral evidence. In this regard, the Court affirmed the position on the appreciation of evidence laid down in State of Assam v. Moslem Mandal. It held that the FT has to consider and assess all of the evidence before coming to the conclusion that it is insufficient for establishing linkage.

Second, the Court discussed the standard of admissibility with respect to the documents. It held that: “If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish” (paragraph 14). In other words, documents have to be accepted as long as the procedure for admission satisfies the requirements under the Indian Evidence Act, 1872. In the present case, the Court noted that although the documents were admitted as evidence, it was not clear from the impugned order whether the documents satisfied the procedure laid down under the evidence law. Thus, the FT must reconsider the documents in light of whether the requirements of admissibility had been satisfied or not. 

Third, the Court observed that while 39 documents were admitted as evidence, the “order did not contain any observations about the manner in which they were presented before the Tribunal” (paragraph 14). The Petitioner produced photocopies from the certified copies of land documents, which were accepted as exhibits by the Tribunal. “As per the Indian Evidence Act 1872, unless the documents presented before the court satisfy the procedure laid down under the Act, the same will not be admissible” (paragraph 14). The order of the Foreigner’s Tribunal did not indicate whether such procedure had been fulfilled or not by the petitioner. If the documents satisfy the requirements of law, the Tribunal has to accept them and determine whether they establish the linkage that the petitioner seeks to establish. 

The Petitioner argued that all oral evidence must be considered in terms of Section 50 of the Evidence Act. Section 50 states that when the court has to form an opinion on the relationship between two or more persons, then the opinion, expressed by conduct, of any person who would have a special knowledge about the (impugned) relationship, either as a member of the family or otherwise, is a relevant fact. In other words, the opinion of a person who has knowledge about the impugned relationship is a relevant fact for the purpose of evidence. In this regard, the High Court referred to the Supreme Court’s discussion on Section 50 in the case of Dolgobinda Paricha v. Nimai Charan Misra. It was held that there are three essential requirements of Section 50. Crucially, the Court held that the term ‘opinion’ in Section 50 means “something more than mere retelling of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question” (paragraph 15). In other words, opinion means a belief or a conviction that results from one’s thoughts on a particular question. Resultantly, the Court must infer this opinion through conduct, which cannot be willed without the inner existence of the opinion. Then, the Court assesses this opinion to determine the existence of the relationship in question.

The Court applied Section 50 of the Evidence Act and held that “under the circumstances, we find that the documents exhibited and the oral evidences adduced by the petitioner before the Tribunal have not been considered by the Tribunal, and no reasons are discernible in the impugned order so as to enable this Court to appreciate the basis of rejection of these evidences by the Tribunal” (paragraph 16). Therefore, the writ petition was partially allowed. Accordingly, the Court remanded the matter back to the Tribunal for rehearing and arriving at a judicious finding based on proper appreciation of evidence. 

Lastly, the Court took notice of the fact that the Petitioner had been in detention since the date of the FT order and ordered his release on bail. However, the bail was on the condition that the Petitioner will appear before the Deputy Commissioner of Police, Guwahati and furnish a bail bond of Rs.5000/. At the time of executing the bail bond, the Deputy Commissioner of Police (B), Guwahati shall take photographs of the Petitioner and also record the biometrics of the iris of both the eyes as well as the fingerprints of both the hands of the Petitioner. 

Significance: The High Court recognised the applicability of Section 50 of the Indian Evidence Act, 1872 to proceedings before the FTs. This is in line with the earlier decision in Haider Ali v. Union of India and in contrast with the previous decision in Nur Begum v. Union of India. This is a significant development in the field and will lead to a positive outcome. FTs routinely disregard oral evidence and have held individuals to be foreigners due to the lack of documentary evidence of linkage in their cases, even when their parents or siblings testify in the FT about the identity of the parents of the suspected person. Section 59 of the Evidence Act recognises oral evidence as a valid mode of proof. In particular, Section 50 expressly acknowledges the relevance of oral evidence for cases on establishing the existence of a relationship between two persons. The failure to consider oral evidence as valid in citizenship cases has a disproportionate impact on poor and illiterate married women who do not have birth certificates or school records due to their disadvantaged socio-economic backgrounds. Such women have no documentary proof of their parents’ identities. Their existence is documented in government records only in their adult lives as wives of their husbands following the patriarchal norms of identification of women alongside their husbands. This is also true for children. Some children, especially girls, do not go to school and hence do not have school certificates. Some struggle to establish their identity in the absence of fathers. Similarly, transgender persons are also discriminated against in the process. Swati Bidhan Baruah explained that transgender persons are likely to lack access to the necessary legacy and linkage documents. Even in cases where such documents are available, these documents are often rejected on the basis of the inconsistencies in their gender and names. Therefore, the recognition that Section 50 is to be applied is an important step towards ensuring that marginalized groups are not disproportionately burdened when defending their citizenship.

At the same time, this judgment is flawed insofar as the High Court imposed onerous conditions for bail. We have previously criticized this in our discussion of Samsul Hoque v. UOI. Notably, the Court did not even condemn the wrongful detention as a consequence of an inadequately reasoned order passed by the FT.

Table of Authorities:

  1. State of Assam and Anr. v. Moslem Mandal and Ors., 2013 (1) GLT 809
  2. Dolgobinda Paricha v. Nimai Charan Misra, 1959 AIR 914 
    1. Affirms discussion of Section 50 in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299, 309.

Resources:

  1. Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian state of Assam, Statelessness and Citizenship Review, Volume 2 No 1.
  2. Designed to Exclude: How India’s courts are allowing Foreigners Tribunals to render people stateless in Assam, Amnesty International, 2019. 
  3. Arushi Gupta and Eeshan Sonak, Case Note: Samsul Hoque v. Union of India, WP(C)/6056/2019, Parichay Blog, 19th September 2021. 
  4. Parichay, Interview With Swati Bidhan Baruah, Parichay Blog, 5th October 2020.
  5. Trisha Bhapandit and Padmini Baruah, ‘Untrustworthy’ and ‘Unbelievable’: Women and the Quest for Citizenship in Assam, Statelessness and Citizenship Review, Vol. 3 No. 1.
  6. Sital Kalantry and Agnidipto Tarafder, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper, 2021. 
  7. Sadiq Naqvi, Captain Sanaullah’s Burden Of Extraordinary Proof, Article 14, 19th May 2020. 

This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India.This note was prepared by Khush Alam Singh and Arushi Gupta.