Kamal Chandra Sarkar v. Union of India, WP(C)/7426/2018
Read the order here.
Date of the decision: 07.12.2021
Court: Gauhati High Court
Judges: Justice N. Kotiswar Singh and Justice Malasri Nandi
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. Crucially, the Court held that post-1971 documents cannot be dismissed and could be used in conjunction with other evidence. It also reiterated that linkage need not be established with relatives other than the projected ancestor and that minor discrepancies must be ignored.
Facts: The Petitioner was referred to the Foreigners’ Tribunal (FT) on the ground that he was a ‘foreigner’ who entered India after 25.03.1971. The Petitioner laid 15 documents before the FT including the 1966 voters list mentioning both his parents and the 1970 voters list which mentioned his father’s name. He exhibited a certified copy of Jamabandi, a document recording rights over land, which was in his father’s name and his own names. Additionally, the Petitioner also exhibited his school transfer certificate dating to 1984, a ration card, a Gaon Panchayat certificate, a Gaonburah certificate, a Legacy certificate and multiple voter lists (1977, 1985, 1993, 1997, 2005, 2008, and 2010) with his name. The Petitioner supplied these documents in order to establish his link with his projected father, Mr. Kedar Nath Sarkar.
Upon examination of the aforementioned documentary evidence, the FT passed an order declaring the Petitioner as a foreigner. The FT held that the documents were insufficient to prove the Petitioner’s linkage to his father. Aggrieved by this order, the Petitioner filed a writ petition before the Gauhati High Court.
Holding: The High Court examined all these documents to hold that the evidence exhibited was sufficient to establish his identity as the son of Kedar Nath Sarkar i.e. whose name was included in the voters’ list of 1966. Having satisfied the burden to prove his linkage to a pre-1966 ancestor, he was declared as a citizen by the Court.
With respect to the voter lists of 1966 & 1970, the first objection that the FT had laid down was that the name of the Petitioner’s mother only appeared in the former and not the latter. The High Court negated this objection to hold that the absence of the Petitioner’s mother’s name in the voter lists post-1966 would not render suspicious the voter list of 1970 since the Petitioner was tracing his ancestry through his father. Given that the father’s name appeared in both voter lists, these documents were accepted as proof of linkage by the Court.
The second objection that the FT laid down was that the age of the Petitioner’s father was stated as 65 years in both voter lists. Dismissing such suspicion, the High Court held that errors in age were frequent in the electoral rolls, and the same could not be enough to render them unreliable. The High Court took note of the fact that the Petitioner’s address in the voter list of 1977 was the same as that of his father in the voter lists of 1966 & 1970. lists. The Court concluded that the petitioner resided in the same village as his projected father, and thus deemed as established, the link between the Petitioner and his projected father.
With respect to the voter lists of 1977, 1985, 1993, 1997, 2005, 2008, and 2010, the FT objected to the absence of the Petitioner’s mother and elder brothers’ names. The High Court negated this contention to hold that such an objection was incorrect since the Petitioner was tracing his ancestry through his father and it is only this relationship which had to be proved. The aforementioned voter lists could, thus, not be ignored. Additionally, observing their nature, the Court held that these voter lists were mere extracts of the document, and not the entire electoral roll. Thus, the absence of names of any relatives, other than whom linkage was being established with, could not be held against the petitioner.
With respect to the Gaonburah’s certificate, Legacy certificate and ration card, the FT held that they were issued only in 2017 and thus deemed them as irrelevant. The High Court held that though the documents may have been issued in 2017, in conjunction with other material evidence, they could throw light on material facts of the case, and thus could not be held as irrelevant (paragraph 11). Additionally, the Court noted that despite the year of issue, the documents successfully established the link between the Petitioner and his father.
In light of the evidence exhibited (the unquestioned Jamabandi certificate, school transfer certificate, and the ration card issued in the name of the Petitioner by showing his father's name) the Court held that the Petitioner had satisfactorily established his link to his projected father, and was declared an Indian citizen.
Significance: This is a significant judgement as it correctly laid down the proper manner in which to appreciate evidence. Firstly, the Court recognised that post-1971 documents cannot be rejected only due to their date of issuance. It noted that such documents may throw light on certain facts. For example, in the case of doubt over a pre-1971 linkage document due to spelling errors in the name of the parent, a voter card issued post-1971 would help corroborate the petitioner’s linkage with their projected father. Such documents would be material in contributing to the totality of evidence presented, in order to successfully establish linkage.
Furthermore, for those born after the cutoff year of 1971, the burden of providing documents issued prior to this year could be too onerous to fulfil. The Supreme Court too had ordered that for inclusion in the NRC, List B (post-1971) documents would be legally valid regardless of when they were actually issued. This judgement thus paves the way for appreciation of post-1971 documents by recognising their importance in and by themselves, in addition to their corroborative value.
Secondly, the Gauhati High Court followed the line of reasoning explained in Haider Ali v. Union of India, wherein it was held that mere doubts over documentary evidence could not lead to their rejection in toto. Therefore, it is clear that minor discrepancies in the documents cannot be a reason to reject them altogether.
Additionally, there has been an infamous tradition in the rulings of the Foreigners Tribunals of expanding investigation beyond the focal point of linkage with one pre-1971 ancestor. In one such case, voter lists were rejected due to spelling discrepancies in the name of her mother, while ignoring the fact that these lists successfully established linkage with the father. In the instant case, the Court emphasised that the analysis of the evidence had to be restricted to the ‘fact in issue’ i.e. linkage with projected father. Proving links with anyone other than whom the ancestry is being traced through is unnecessary and a burden which the Foreigners’ Act, 1946 does not impose on the proceedee. This was also emphasised by the same court in Haider Ali v. Union of India.
Resources:
Tora Agarwala, In rare verdict, Gauhati High Court junks Assam tribunal order labelling man a ‘foreigner Indian Express 13th April 2021.
Scroll staff, Mere doubt about documents not ground to declare citizens foreigners Scroll 04th January 2022.
Sital Kalantry and Agnidipto Tarafder, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper, 2021.
Parichay, Interview With Swati Bidhan Baruah, Parichay Blog, 5th October 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, 2019.