April 13, 2021 12:47:42 pm
In what is considered a landmark judgment, the Gauhati High Court overturned the order of a Foreigners’ Tribunal (FT) that had declared a man a foreigner for failing to establish linkage with all his relatives in the pre-1971 voters’ lists in Assam.
On January 30, 2019, FT-III, Barpeta had declared a Haider Ali, a resident of No 12, Kawaimari village, Sarthebari, a “foreigner”, who had entered Assam post-1971.
In Assam, citizenship is traced by descent, which means that to be considered an Indian citizen in the state, it is imperative that they link their identity to that of a pre-1971 ancestor — the cut-off as per Assam Accord of 1985.
After he received a notice, Ali appeared before the FT on June 11, 2018, to submit his written statement and supporting documentation to defend his Indian citizenship. Ali furnished documents — including voters’ list of 1965 and 1970 with his grandparents’ name, voters’ list of 1988 with his father’s and grandparents’ names, voters’ list of 1997 and 2010 with his and his parents’ names, birth certificate, high school certificate, Gaon Bura/village headman) certificate — that linked him to his father, Harmuz Ali and his grandparents Nadu Miya and Aymona Nessa, both of whose names appear on pre-1971 voters’ lists (1965 and 1970). Yet, the FT declared him a “foreigner” since he could not establish “the linkage in proper manner” to five other names (apart from his grandparents) mentioned in the voters’ list of 1970. These included the names of three uncles and two aunts, who were his father, Harmuz’s siblings.
On March 30, 2021, an order by a single judge bench comprising Justice N Kotiswar Singh, “set aside” the FT’s order and declared that Ali is “an Indian, not a foreigner.”
According to the judgment, “non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voters list of 1970 does not affect the credibility or genuineness of the evidence in the form of voters list of 1970, to show the linkage of the petitioner with his grandparents.”
It further adds: “if the petitioner had disclosed in more detail the family tree, it would rather strengthen his claim, but failure to disclose the names of all the members of the family cannot weaken his case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences.”
The FT had also said that Ali did not disclose that his father had three brothers and two sisters in his “written statement and evidence”, which leads to “serious adverse inference” against him for non disclosure. The HC order points out that there is a difference in ‘written statements’ in civil courts and in FTs.
It says: “‘Written statement” under the CPC is a statement of defence submitted by the defendant in response to the averments, allegations and claims made in the plaint filed by the plaintiff.” In other words, the person is defending himself by responding to a list of allegations against him. However, in the case of FTs, only a notice is issued stating that “he or she is an illegal entrant to the State, in the territory of Assam and India from the specified territory and certain specific period of time, without any other facts and documents being furnished to him.” It does not mention any other charge.
The order adds: “The Tribunal does not examine any of the persons who had made the reference or who had conducted the investigation against the proceedee to hold that the proceedee is a foreigner. Thus, the proceedee is totally in dark as to how he came to be considered to be a foreigner and not an Indian.”
Gauhati-based lawyer Aman Wadud said that all FT notices follow a “set format”. “It only includes the name, the fact that he/she is being accused as a foreigner and that that you have to prove your citizenship,” he said, “The fact that the HC is pointing this out shines a light on the functioning of FTs.” He added that the HC order Ali’s case can be a precedent in future citizenship cases because “it puts a check on the unreasonable manner FTs cherry-pick discrepancies when it comes to foreigner cases.”
He added that HC’s observation that non disclosure of relatives names (such as brothers, aunts, uncles) does not affect the credibility of the defense will help in future, when NRC drop-outs appeal their exclusion in FTs. Family tree verifications (hearings where you identify members of your family who share the same legacy data) were an important part of the NRC process.
Wadud said that Ali’s was one of the rarest of rare cases in the last 5-6 years where the HC had “completely set aside the FT judgment.” “Usually, even the most liberal judgements remanded the case back to the FT,” he said.
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