In two rulings this month, the Gauhati High Court rejected a number of documents as proof of Indian citizenship in Assam. In one case, a woman had submitted 15 documents including voter lists, land revenue documents and PAN card. In the other case, another woman had submitted eight documents. In separate rulings, the court found that they had failed to prove “linkage” to relatives who were Indian citizens.
India has various provisions and dates for citizenship by birth, descent, naturalisation etc. “Assam has a special provision when it comes to citizenship,” said Brajendra Prasad Katakey, former Gauhati High Court judge.
This special provision sets the cutoff for citizenship at midnight of March 24, 1971. This date was agreed in the Assam Accord of 1985, signed by the Centre, the Assam government and the All Assam Students’ Union after the Assam Movement to expel “foreigners”. A Non-Obstante Clause (Section 6A) was inserted in the Citizenship Act, 1955, stating that people who entered Assam between January 1, 1966 and March 25, 1971 need to register with a Foreigners Regional Registration Office. “This section is disenfranchised for ten years after which they enjoy rights as Indian citizens. Those who enter Assam after 1971 are considered foreigners,” Katakey explained.
Broadly, two documents are required. The first one needs to show that the applicant’s parent, grandparent or ancestor was living in Assam in 1971 or earlier. The second document needs to show that the applicant is indeed a descendant of the parent/ancestor named in the first document. This is called linkage. “Basically, these link documents need to bear the name of the person’s pre-1971 ancestor,” Katakey said.
LIST A: This document could be any one among: land records; citizenship certificate; permanent residential certificate; refugee registration certificate; passport; LIC; any licence/certificate issued by a government authority; any document showing service/employment under government/PSU; bank/post office accounts; birth certificate, educational certificate, or court documents — as long as it was issued before March 24, 1971.
LIST B: The link document could be: birth certificate; land document; board/university document; Bank/LIC/post office document; electoral roll; ration card; circle officer/gram panchayat secretary certificate in case of married women; or any other legally acceptable document.
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“Appearing on a (post-1971) voter list is not a conclusive proof of citizenship. It just means that you have been residing in the place for 60 odd days or six months,” said Kamal Nayan Choudhury, a senior advocate at the High Court, “but if you can corroborate it with other (pre-1971) documents like a birth certificate or land documents in the name of your father, then it means something.”
NRC authorities digitised all pre-1971 electoral rolls, as well as the 1951 NRC (which exists only in Assam). The authorities introduced an intervention — a number called the legacy code. Using this mechanism, applicants could trace their legacy on an electronic database. This generated a unique code to avoid replication.
While NRC is one test of citizenship in Assam, individuals can also be served a notice to appear before a Foreigners Tribunal, where they need to prove their citizenship under the same rules. In the two High Court cases, both women had been served notices from Foreigners Tribunals, Assam’s quasi-judicial bodies that examine complaints against suspected “foreigners”.
Jabeda Begum of Baksa district and Nur Begum of Golaghat district had both been marked D-Voters (“doubtful” citizenship) and thereafter received notices from Foreigners Tribunals.
JABEDA BEGUM: She furnished 15 documents, including voter lists from 1966 and 1971 that showed her parents’ names. To establish linkage, she submitted two certificates by the Gaon Bura or village headman who attested that she was indeed the daughter of her parents, and had moved away to another village after marriage. To prove her own identity, she submitted a voter list from 1997 bearing her name, land revenue receipts, bank passbook, PAN card etc. The court observed that she “could not file any documents to link herself with her projected parents.”
NUR BEGUM: She submitted eight documents, including a 1966 voter list bearing her grandfather’s name. She submitted three documents bearing her name and her father’s — a Class IX certificate from a provincialised school, a Gaon Bura certificate, and a caste certificate stating she belongs to the Jolha community. In addition, she submitted the 1997 voter list, which showed the relationship between her projected father and grandfather. The court was not satisfied that these documents established her relationship with her projected father.
Both women had submitted village panchayat certificates as their link document. Often the only document rural married women have, this is from the village headman certifying permanent residency and marriage.
In February 2017, the Gauhati High Court had ruled that village panchayat certificates were not admissible proof of citizenship. A number of petitioners appealed against this.
“In November 2017, the Supreme Court passed an order that they were ‘valid documents’ but would be subject to further scrutiny,” said Syed Burhanur Rahman, a High Court advocate. The Supreme Court order stated that such certificates are “not document for citizenship” but a “supporting document and, for it to be valid, there needs to be proper verification”.
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According to Rahman, to prove the content of such documents, it needs to be verified orally by the issuing authority.
In Jabeda’s case, the village headman gave oral testimony in the Foreigners Tribunal, and so did her brother. The court ruled: “Certificates issued by a Village Gaon Bura can never be the proof of citizenship of a person. Such certificate can only be used by a married woman to prove that after her marriage, she had shifted to her matrimonial village [Rupjan Begum Vs Union of India, 2018].”
In Nur Begum’s case, none of the issuing authorities of the three linkage documents appeared in court. Her mother appeared. “All the certificates rendered itself as inadmissible in evidence, inasmuch as, the authors were not examined to prove the Certificates and the contents thereof,” the court ruled. “We would reiterate that 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” it stated.
According to Rahman, “Section 50 of the Evidence Act, which says that close relatives can give oral testimonies to prove relations, could have been invoked.”
The court stated: “Although an argument can be made that since the school in question is a provincialised school and on that account the Certificate is admissible in evidence, we may observe that a document which is found admissible is not the end of the matter. The content of the same has to stand proved through the legal testimony of the Issuing Authority.”
According to Rahman, the provincialised school document could have been admissible. He referred to a 2009 Supreme Court judgment (Shyam Lal @ Kuldeep vs Sanjeev Kumar & Ors) and said: “If a public document — like Nur Begum’s school certificate — is adduced in a judicial forum, and that is not rebutted by the other side, then presumption can be drawn in favour of that document.”
Choudhury, however, said these documents are usually considered “secondary evidence”. “They are admissible only if one produces original gazette documents. With photocopies etc, the issuing authority has to be brought to the court. These are the intricacies of the Evidence Act,” he said.
This article first appeared in the print edition on February 29, 2020 under the title ‘Assam’s citizenship test papers’.