[Assam-NRC] Foreigners Tribunal should give every opportunity to individual to produce documents to prove he is Indian: Gauhati High Court

The Gauhati High Court recently ruled that Foreigners Tribunals should afford a person every opportunity to produce documents to substantiate his claim that he is an Indian, even at a later stage [Haidar Ali v. Union of India]..While setting aside a 2019 order of the Foreigners Tribunal in Barpeta, Assam which declared the petitioner a foreigner, the High Court held that it is was only necessary for the person to show his linkage with his father and grandfather, and not with other relatives.."In fact, all opportunities should be given to a proceedee to enable him to produce all such documents which come to his possession even at a later stage also, to substantiate his claim that he is an Indian. No pedantic view should be taken, if there has been some delay or if the same is not mentioned in the written statement," a Bench of Justices N Kotiswar Singh and Justice Manish Choudhury held. .The Tribunal had held that the petitioner did not prove his linkage with certain other persons mentioned in a 1970 voter list which also contained the names of his grandparents. Taking a dim view of this finding, the High Court held,"In our opinion, 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.".While noting that the State never questioned the authenticity or genuineness of the documents produced by the petitioner to prove his linkage with his Indian parents and grandparents, the Court held,"It is to be remembered that the standard of proof in a proceeding under the Tribunal is preponderance of probability and not proof beyond all reasonable doubt. If the petitioner has been able to prove that the names of the petitioner’s father and grandfather were shown in 1966 and 1971 and if the petitioner is able to show his linkage with them on the strength of voters lists after 1971, the Tribunal cannot reject the claim of the petitioner, merely because some documentary evidence were not produced.".The Tribunal had also noted that the petitioner in his cross-examination disclosed that he three brothers and two sisters, he disclosed the name of only one of them in his written evidence. This, the Tribunal ruled, could be the basis for serious adverse inference against the petitioner.Countering this finding, the High Court held that such non-mentioning of his other relatives cannot be a ground to disbelieve other evidence. "Thus, non-mentioning of his other relatives as well as that of his father cannot be a ground for disbelieving his testimony and the documents relied upon by the petitioner. Of course, 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 judgment said. .If the petitioner is able to prove on the basis of reliable and cogent evidences that the petitioner is the son of Harmuz Ali and Harmuz Ali was in turn, the son of Nadu Miya, the petitioner can be said to have successfully established his linkage with his father and with his grandfather, the Court noted. Since, his father and grandfather were undisputedly Indians, the petitioner can be said to have established his case as a citizen of this country, the Court made it clear. "The more evidences one adduces, the better for him. But there is no law nor dictum that if the proceedee does not disclose the names of all the other relatives, other than what matters and does not produce all the relevant evidences other than what matters, his evidence cannot be believed," the Court stated. .The Court also differentiated between the term “written statement” used in proceedings before the Foreigners Tribunal and under the Code of Civil Procedure (CPC), 1908."While “written statement” as understood under the CPC is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint in response to the plaint, in the case of a proceeding before the Tribunal, no such plaint or the charge is filed except for informing the proceedee through a mere notice or summon issued by the Tribunal issued by making an allegation that the proceedee is not an Indian but a foreigner who came to India on a certain specific period of time.".It was further held that normally the rules of pleadings including that of “written statement” as provided under the CPC are not applicable to proceedings before the Foreigners Tribunal. "The principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal though the principles may generally be applied," the Court held .Inter ilia, it was also observed by the Court that though Jamabandi (record of rights in land records) and other revenue receipts cannot create a title, these can be used as corroborating evidences to show that the petitioner’s father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971, and as such they were residents of Assam.Accordingly, the Court allowed the petition and set aside the Tribunal's order, holding Haidar to be an Indian..[Read Order]