Aziran Bibi v. Union of India, WP(C)/5070/2019
Read the order here.
Date of the decision: 07.04.2022
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, declaring the Petitioner to be a ‘foreigner’ who entered India after 25.03.1971. The High Court held that the FT did not properly consider the oral evidence adduced by the Petitioner, and the matter was thus remanded back for fresh hearing.
Facts: The Petitioner was referred to the FT on the ground that she was a ‘foreigner’ who entered India after 25.03.1971. The Petitioner challenged this opinion on four grounds:(1) Deposition of the father of the Petitioner was not discussed; (2) The FT held that certified copy of the voters lists were not proved even though they were exhibited; (3) The FT held that Panchayat certificate was not proved even though it was exhibited and proved and (4) The investigation report was not proper.
Holding: The Gauhati High Court held that non-consideration of oral testimony would be a sufficient ground for the order to be remanded to the FT for fresh consideration. The Court observed that while the FT had discussed various documents relied upon by the Petitioner and also the petitioner’s testimony, it did not refer to the oral evidence given by her father.
The Court held that the opinion, thus, suffered from a serious material defect i.e., non-consideration of relevant material evidence, which would render the opinion unsustainable in law. It affirmed the position on the appreciation of evidence laid down in State of Assam v. Moslem Mandal, to hold that “It is now well settled that when an opinion is rendered by an authority, the authority must take into consideration all the relevant materials and evidences and failure to take into consideration any relevant material would render such an opinion unsustainable in law” (paragraph 6). In other words, the FT has to consider and assess all of the evidence before coming to the conclusion that it is insufficient for establishing linkage. Accordingly, it emphasised the importance of considering all the relevant evidence that is presented before the FT, and that a decision should be made only after such a holistic consideration. Failure to do so would result in the opinion being rendered as legally unsustainable.
It acknowledged that the FT had given its reasons for the credibility of other evidence but stressed that the opinion would have to be re-visited since the consideration of the excluded evidence may change the nature and character of the other evidence assessed. Thus, it remanded the matter back to the FT, directing it to re-appreciate all the evidence on record, including the Petitioner’s father’s testimony, and that the opinion would have to be given only upon a holistic consideration of all the evidence on record.
Significance: The Court reiterated the importance of proper appreciation of oral testimony given during FT proceedings, and the necessity of assessing it in a holistic manner along with the other evidence on record, to decide the petitioner’s citizenship.
The Indian Evidence Act, 1872 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 decision herein was in line with the Court’s earlier decision in Sujab Ali v Union of India (our analysis here) wherein the case was remanded to the FT for fresh hearing due to many irregularities with the FT’s opinion, including non-consideration of the oral evidence. The Court therein underlined the importance of application of Section 50 of the Indian Evidence Act for proper appreciation of oral evidence.
Where individuals were illiterate, or where their birth had not been recorded, documentary evidence would be impossible to obtain. This was noted by the court in Haider Ali v Union of India. In such cases, the court held, facts about date or place of birth or other facts could be proved by oral evidence.
However, FTs have been known to frequently disregard oral evidence and declare individuals as foreigners due to the lack of documentary proof of linkage, even though their family members may have given oral testimony with respect to the same. Even in cases where such documents are available, these documents are often rejected on the basis of the inconsistencies in their gender and names had noted that the failure to consider oral evidence as valid in citizenship cases has an especially disproportionate impact on poor and illiterate married women, who do not possess the requisite documents due to their disadvantaged socio-economic backgrounds.
Table of Authorities:
State of Assam v Moslem Mandal, Rev. Petition No. 22/2010
Resources:
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.
Mohsin Alam Bhatt, Irregularizing Citizenship in India – Verfassungsblog, Verfassungsblog, 22 November 2021.
Parichay Team, Interview with Oliullah Laskar – Parichay – The Blog, Parichay, 9 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.
Sadiq Naqvi, Captain Sanaullah’s Burden Of Extraordinary Proof, Article 14, 19th May 2020.
Designed to Exclude: How India’s Courts are allowing Foreigners’ Tribunals to render people stateless in Assam, Amnesty International India, 2019.
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.