Md. Tafajjul Hussain @Tafajjul Hussain v. UOI, WP(C) 364/2020
Read the judgement here.
Date of the decision: 07.04.2022
Court: High Court of Gauhati
Judges: Justice N. Kotiswar Singh and Justice Soumitra Saikia
Summary: The Petitioner challenged the order passed by the Foreigner’s Tribunal that declared him as a foreigner. The High Court of Gauhati found the Tribunal’s evaluation of the documents provided by the Petitioner as incomplete and thus faulty. In accordance, it allowed and remanded the case for a fresh decision.
Facts: Upon a reference made to the Foreigner’s Tribunal (FT), the Petitioner, born on 01.01.1976, was served a notice to prove his citizenship. The Petitioner appeared before the FT, filed his written statement, produced twenty-seven documents and presented two witnesses in support of his Indian citizenship. The evidence comprised voter lists, Gaon Burah certificate, school certificate and land papers, among others. It did not, however, include a birth certificate.
The FT found the material presented by the Petitioner unproved in accordance with law and hence without any probative value. According to the FT, the documents were insufficient to establish links between the Petitioner and his grandfather and father. Further, the Petitioner failed to disclose the names of his mother, brother or sister and other family members, and the status and place of birth of his father in the written statement. The FT held that the failure to disclose all the relevant material particulars have resulted in drawing of adverse presumption against the Petitioner.
Upon a close examination of the FT records, the Court observed that the Petitioner had filed necessary applications for issuance of summons to the Revenue Officials with regards to the submitted land documents. The Petitioner relied upon these documents to project that his grandfather, father and forefathers had acquired land properties. The Tribunal had issued a summon to the concerned authorities but the Petitioner failed to serve the same. Under these circumstances, the FT decided to wind up the opportunity granted to the Petitioner and proceeded for an opinion on the merits of the case. The Tribunal neither accepted the documentary evidence presented by the Petitioner nor found the land documents relied upon by the Petitioner to establish a link with his father and grandfather in accordance with law. In consequence, the FT delivered the opinion that the Petitioner was a foreigner as per Section 2 (a) of the Foreigners’ Act, 1946.
Holding: It is in this context that the Court underlined the importance for the Petitioner to get an opportunity to establish a link with his father and grandfather and therefore, disprove the allegation that he is a foreigner. It recognised the evidence pertaining to the authenticity of land documents necessary to determine the presence or absence of a relationship between the Petitioner and his claimed father and/or grandfather. The Court contended that the Tribunal, as per the Foreigners’ (Tribunal) Order, 1964, has sufficient power to have the Revenue Officials summoned and determine the authenticity as well as evidentiary value of the land documents issued (paragraph 18). Moreover, the Court observed that the FT had not thoroughly evaluated the Oral evidence adduced by the Petitioner in its order and the FT is mandated to do so before passing an opinion.
Since “preponderance of probability” is the basis for evaluation of the evidence presented by the Petitioner before the Tribunal, the Court held the Tribunal’s rejection of the submitted oral and documentary evidence without the testimony of the Revenue authorities, cannot be accepted as proper evaluation on its part. In consequence, it argued that the order passed by the FT cannot be sustained and remanded for a fresh decision. This liberty was granted only for summoning and examining the Revenue authorities with regards to the land documents presented by the Petitioner and cross examination of Defence Witnesses presented by the Petitioner before the FT.
Significance: The most pertinent feature of this case is the use of Section 4 of the Foreigners (Tribunal) Order, 1964 to object and moderate the Tribunal’s dismissal of crucial evidence. The Court condemned the FT’s hasty conclusion on the Petitioner’s citizenship status without a verification of the presented material from concerned authorities. It emphasised not only the FT’s power concerning the issue of summons, as prescribed by the Code of Civil Procedure, 1908, but also its use, or the lack thereof, to the disadvantage of the Petitioner. This judgement is critical as it positions the quasi-federal body, otherwise with the power to regulate its own procedures, within a binding, necessary, legal framework. Thus, holding it accountable.
We see a similar instance in Nashima @ Nasima Begum v. Union of India. In this case, of all the documents submitted by the Petitioner, it was only her school certificate that proved a linkage with her father. The Tribunal issued summons and warrants for securing the presence of the Headmaster who had issued the certificate. However, the latter did not appear before the Tribunal. Ultimately, the FT declared the Petitioner as a foreigner without examining the Headmaster. Here, too, the Court directed the Petitioner to appear before the FT in order to afford her another opportunity to prove her citizenship. Both the above cases highlight the half-hearted efforts on part of the Tribunal. The FT is not only obligated to thoroughly examine the evidence provided by a Petitioner but also empowered to enforce attendance, including the authority to issue a warrant of arrest, as and when required during such examination. In neither Nashima @ Nasima Begum v. Union of India nor the case at hand, does the FT do so.
Sujab Ali v. Union of India is another similar case where the Court intervened to reinforce meticulous assessment of both documentary as well as oral material provided by those suspected as illegal immigrants. However, unlike the said case, the Court here does not refer to Section 50 of the Indian Evidence Act, 1872 - the relevant law - when demanding the evaluation of oral evidence. This recommendation, without any legal foundation, restrains but does not reprimand the Tribunal’s discretion. This case, henceforth, reveals how the Court simultaneously restrains as well as allows for - at least to some extent - the Tribunal’s arbitrary functioning.
References:
Khushi Singh, Case Note: Nashima @ Nasima Begum v. Union of India, WP(C)/8838/2019, Parichay Blog, 29 January 2021.
Khush Alam Singh and Arushi Gupta, Case Note: Sujab Ali v. Union of India, WP(C)/2221/2020, Parichay Blog, 29 January 2022.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Shreya U.K.