Sulekha Haldar v. Union of India, WP(C)/4928/2018
Read the order here.
Date of the decision: 15.06.2022
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh (authoring) and Justice Nani Tagia
Summary: The Gauhati High Court quashed an order passed by the Foreigners’ Tribunal (“FT”), declaring the Petitioner to be a ‘foreigner’ who entered India after 25.03.1971. The High Court held that not only did the FT not properly consider the oral and documentary evidence adduced by the Petitioner, the decision making process was also vitiated by the personal bias of the FT Member. The HC hence overturned the FT’s decision, declaring the Petitioner to be a citizen of India.
Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that she was a ‘foreigner’ who entered India after 25.03.1971. The Petitioner laid 9 documents before the FT to establish her link with her projected father Khitish Ch. Halder, including the certificates of registration issued in the name of her father and her mother respectively, voters list of 1997 which showed her projected mother Sumati as the wife of Khitish Ch, and Samaresh Biswas as the son of Khitish Ch., voter list of 2005 which showed the Petitioner as the wife of one Lt Rohit Halder with her son Pabitra Haldar, voter list of 2014 in the name of the Petitioner along with her husband and three of her children, land documents by which the petitioner sold certain properties in 2011, the jamabandi copy on which her name appeared as per mutation order dated 15.09.2012, a Gaonburah certificate dated 24.09.2014 and another Gaonburah certificate dated 20.03.2014.
Holding: The Gauhati High Court examined all these documents to hold that the evidence exhibited was sufficient to establish the Petitioner’s identity as the daughter of Khitish Ch. Halder i.e. in whose name the Certificate of Registration was submitted. The parents of the Petitioner being Indian citizens, the Court held that she could claim to be a citizen by descent.
With respect to the Certificates of Registration in the name of the Petitioner’s father Khitish Ch. Haldar, and the mother Sumati Bala Haldar, the first objection that the FT had laid down was that in a previous decision rendered by the FT Member, govt officials of the district had deposed that such certificates were only issued in Nagaon since 1962, and that the Deputy Commissioner would be the sole authority to issue the citizenship certificate. Since the Certificates in the present case were issued in 1957 by the Election Office, Nagaon, they were liable to be rejected. Secondly, the FT placing reliance on the decision of the Supreme Court in Life Insurance Company and Anr vs. Rampal Sing Bisen, rejected the Certificates on the grounds of them not being proved as per law, due to which their genuineness could not be established.
The High Court upheld the validity of the documents, noting that they had been issued by the Election Officer and that their authenticity had not been questioned by the State. Moreover, as per Section 90 of the Indian Evidence Act, the documents would carry with them the presumption of genuineness unless questioned otherwise, since they were more than 30 years old, having been issued in 1957. The Court further held that the question of proving documents as laid down in Rampal Sing Bisen (supra) would only arise in the case of private documents, which the Certificates were not. The HC criticised the reliance of the FT on an opinion which had been personally rendered in a different FT Case, especially since the records of that case had not been brought on record nor had they been made available to the Petitioner. Thus, any such opinion rendered in a different FT case could not be used against the petitioner. The Court regarded these Certificates to be clinching evidence in favour of the Petitioner, since they were issued by a competent authority.
With respect to the voter lists of 1997, 2005, 2014 and the land documents, the FT held that they were issued post-1971 and thus deemed them as irrelevant. The HC upheld their relevance, stating that though they were dated post-1971, they could still be used as corroborative evidence for proving relationships or stay in the country. In accordance with such reasoning, the HC used the voter list of 1997, which was in the name of the Petitioner’s brother Samaresh Biswas with Khitish Ch stated as his father, as corroborative evidence vis-à-vis the Petitioner’s testimony that she had a brother named Samaresh Biswas, in order to prove the relationship of the Petitioner with her father Khitish Ch.
With respect to the HSLC certificate of 1970 issued by the Board of Secondary Education, Assam, in the name of Kumaresh Biswas who was the projected elder brother of the Petitioner, the FT rejected the evidence on the ground that the petitioner had deposed that the name of her father was Khitish Ch. The HC rejected the reasoning of the FT on the ground that no question was raised in cross-examination when the Petitioner had stated that Kumaresh Biswas was her elder brother. Therefore, if the petitioner produced the original HSLC certificate in his name, there was no reason to doubt her statement. Furthermore, the production of the original certificate could only attest to the closeness of relationship between the Petitioner and Kumaresh Biswas since the original of such a document could not have been obtained by someone who was a stranger, and would only corroborate the fact that the Petitioner was related to him, as claimed by her. The voter list of 1977, in the name of Kumaresh Biswas with Khitish Ch. as the father, was further used to corroborate the Petitioner’s testimony.
The FT additionally rejected the voter list of 1997 in the name of Kumaresh Biswas on the ground that the FT Member had known people to falsely insert their names in the electoral rolls to establish themselves as blood relations of those whose names were already in the voter list. The Member further made an observation that he had personally witnessed such malpractice when he was a child. The HC castigated the use of such personal experiences in judicial decision making, instead of the independent appreciation of evidence on record which was the norm. The Court held that “Personal opinion of a Judge or Member of a Tribunal ought not to be allowed to influence the decision-making process as it would amount to personal bias, which will vitiate the decision-making process. Neutrality of a Judge or decision making authority will stand compromised if his personal opinion based on personal experience based on certain fact situation is allowed to shape his final decision. While a Judge is entitled to have his views on the rival contentions of the contesting parties or on the question of law, he cannot bring his own views or belief based on his personal experience or certain facts, and make it a part of the decision. That would amount to bringing an extraneous material to shape the decision, which is unknown to the parties, but known only to the Judge. Since, in the present case, such a personal knowledge of the Member of the Tribunal relates to certain alleged malpractices, unless substantiated by evidence or already judicially noticed earlier, cannot be used to shape his decision. Apart from being plainly prejudicial to the parties, it amounts to judicial impropriety.” In other words, the Court held that the personal opinion of the Judge could not be allowed to influence the decision making process as it is not something that the Petitioner could know was acting against them and would thus vitiate the fairness of the entire decision making process. Maintaining a neutral standpoint while assessing evidence was stated to be of the utmost importance.
The HC discussed the standard of proof which is to be followed in FT proceedings, namely preponderance of probability, which the HC explained as “on the basis of the evidences that are be adduced, the case of the proceedee should be more probable than the one offered by the State.” In other words, the evidence laid by the Petitioner should establish that it is more probable for her to be a citizen than a foreigner.
The HC went on to hold that the Petitioner in this case had been able to establish, through original documents whose authenticity had not been questioned, that in all probability she was the daughter of Khitish Ch. Haldar and Sumati Bala Haldar, who were registered as citizens of this country in the year 1957, supported by the original HSLC certificate in the name of her brother, as well as the aforementioned voters lists. Furthermore, no contrary evidence had been brought on record by the State to dispute these claims. The HC thus held that the Petitioner had been able to discharge her burden as required under Section 9 of the Foreigners Act, 1946.
Significance: This decision is significant as the Gauhati HC emphasised the importance of proper, unbiased and independent appreciation of evidence, both oral and documentary, and the necessity of deciding citizenship cases on an independent and fair basis.
The Gauhati High Court in The State of Assam vs Moselm Mondal had laid down the law for assessment of evidence in FT proceedings, holding that preponderance of probabilities was the standard of proof to be followed in FT proceedings. However, most FTs assessed evidence on the much higher standard of beyond reasonable doubt, leading to rejection of evidence with even the most minor of discrepancies. The Gauhati High Court in Haidar Ali vs Union of India, and most recently in Uttam Ghosh vs Union of India, reiterated the standard laid down in Moslem Mandal, explaining that the standard of preponderance of probability meant that minor inconsistencies would not warrant the rejection of a claim for citizenship.
The decision herein is also important due to the emphasis placed on the importance of a fair trial, one of the essential elements of which is an unbiased and impartial judge. It is a well settled principle that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act impartially, objectively and without any bias. This assumes even more importance in a proceeding where the burden of proof rests entirely on the petitioner, as is the case in FT proceedings since the petitioner would not be able to present an effective defence if they are not made aware of the entire case against them. The personal bias of the FT Member, and his decision in another FT proceeding where the Petitioner was not a party to the proceeding, are both extraneous considerations which, in influencing the FT’s decision, vitiated its fairness and the HC thus emphatically censured the same. This decision is especially significant in light of the allegations of bias that have tainted the conduct of FT proceedings.
With respect to documentary evidence, the Court underlined the difference in the burden of proof for public documents, as compared to private documents. In an earlier decision, this Court had held that in light of Section 77 of the Indian Evidence Act, 1872, the contents of public documents need not be proved if a certified copy is provided of the same. With respect to the evidentiary value of documents issued post-1971, the decision herein was in line with the Court’s earlier decision in Kamal Chandra Sarkar vs Union of India (our analysis here) wherein the Court held that post-1971 documents could not be rejected only due to their date of issuance and could act as corroborative evidence. The Court in using such documents to corroborate and rely on oral evidence also accorded due consideration to oral evidence, the lack of which is an issue that has been notoriously plaguing FT proceedings throughout the state of Assam. The Evidence Act vide Section 59 recognises oral evidence as a valid mode of proof. Additionally, Section 50 specifically acknowledges the relevance of oral evidence for cases on establishing the existence of a relationship between two persons. The Court’s decision herein was thus significant, since the HC not only relied on oral evidence, it also used post 1971 documents to corroborate such oral evidence. The Court’s judgement herein is also significant with respect to oral evidence for it followed the long established principle of law that if certain testimony is not challenged by the opposite party and remains unrebutted, it ought to be believed by the Court.
Table of Authorities:
Life Insurance Company and Anr vs. Rampal Sing Bisen, Civil Appeal No. 893 of 2007.
Resources:
Uttam Ghosh vs Union of India, WP(C) 93 of 2022.
Sital Kalantry and Agnidipto Tarafder, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper, 2021.
Trisha Bhapandit and Padmini Baruah, ‘Untrustworthy’ and ‘Unbelievable’: Women and the Quest for Citizenship in Assam, Statelessness and Citizenship Review, Vol. 3 No. 1, 29 October 2021.
Atreyo Banerjee, Suspicion as evidence: The Supreme Court’s Sarbananda Sonowal judgments, and the chimera of legitimacy of foreigner tribunals – The Leaflet, The Leaflet, 27 September 2021
Douglas McDonald-Norman, Aper Ali or Afer Ali: The Foreigners Tribunal and ‘Inconsistencies’ – Parichay – The Blog, Parichay, 2 November 2020.
Parichay Team, Interview with Aman Wadud – Parichay – The Blog, Parichay, 5 October 2020.
Talha Abdul Rahman, ‘Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals in the Indian state of Assam, Statelessness and Citizenship Review, Volume 2 No 1, 29 June 2020.
Mazibar Miah vs Union of India, WP(C) 871 0f 2019.
Designed to Exclude: How India’s Courts are allowing Foreigners’ Tribunals to render people stateless in Assam, Amnesty International India, 2019.
Haider Ali vs. Union of India, WP(C) 1818 of 2019.
Aminul Islam, Assam Legislative Assembly - Unstarred Question No. 152, 12 December 2018.
Kamal Chandra Sarkar vs Union of India, WP(C) 7426 of 2018.
The State of Assam vs Moslem Mandal, Review Petition No 22 of 2010.
Laxmibai (Dead) Thr. L. Rs. and Anr. vs. Bhagwantbuva (Dead) Thr. L. Rs. and Ors. , Civil Appeal No. 2058 of 2003.
Nilamani Singh Tanu Singh vs The State, AIR 1970 Tri 72.
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 P Ritika Rao.