‘Man’s entry from East Pakistan after riots doesn’t seem illegal’: Gauhati High Court

The bench noted that it appears that the petitioner has a document regarding his status as a refugee, and the said information further discloses that it contains the name of the projected father of the petitioner along with the name of the petitioner having entered into the territory of India.

Man challenges finding

The man was challenging the December 19, 2016, order of the Foreigners’ Tribunal, declaring him an illegal migrant belonging to the post-March 25, 1971 stream.

Justices Kalyan Rai Surana and Susmita Phukan Khaund granted bail to an illegal migrant.

Seeking to establish his Indian citizenship, the petitioner relied on four documents before the tribunal: a registered sale deed dated November 26, 1966 in the name of his projected father, a 1997 electoral roll containing his name, a certificate issued by the Gaonburah (a traditional village headman) certifying that he was the son of his father, and a similar certificate issued by the Simenmukh Gaon Panchayat.

The tribunal accepted the registered sale deed as an admissible document because it was more than 30 years old and attracted the presumption under Section 90 of the Evidence Act. However, it found that the Gaonburah and Gaon Panchayat certificates had not been formally proved by examining their authors.

The tribunal held that the petitioner had failed to establish his relationship with the projected father. It further observed that the 1997 electoral roll was a post-1971 document and, by itself, could not establish Indian citizenship. On this basis, it concluded that the petitioner had failed to discharge the burden of proving his citizenship and declared him an illegal migrant.

Before the high court, the petitioner sought to set aside the tribunal’s opinion and requested that the matter be remanded so he could produce additional evidence.

Post 1971 document itself not establish citizenship

Appearing for the state, Additional Senior Government Advocate P Sarmah contended that the petitioner had failed to discharge the burden of proving his citizenship.

It was argued that the Gaonburah and Gaon Panchayat certificates were inadmissible because they had not been proved by examining their authors and were private documents.

It was also submitted that the 1997 electoral roll, being a post-March 25, 1971 document, could not by itself establish citizenship. He further maintained that the petitioner had failed to establish his linkage with his projected father through legally admissible evidence, and therefore the Tribunal had rightly declared him an illegal migrant.

The court held that the sale deed merely showed ownership of land in the projected father’s name and did not establish the petitioner’s relationship with him. It also noted that the petitioner had not produced any inheritance or land revenue records to connect himself with the property.

The court observed that a post-1971 electoral roll by itself does not prove Indian citizenship. It noted that the petitioner had neither disclosed the date of his entry into India nor pleaded his refugee status before the tribunal. Consequently, he failed to establish his linkage with a person who was shown to have been present in India before March 25, 1971.

Although the court noted from the tribunal’s records that there was information indicating that the petitioner’s father had entered India from then East Pakistan in 1964 and was recorded in the Refugee Identity Card Register, it held that these documents had never been exhibited before the tribunal.