Manowara Bewa v. Union of India, W.P.(C) No. 2634 of 2016
Read the judgement here.
Date of decision: 28.02.2017
Court: Gauhati High Court
Judges: Justice Ujjal Bhuyan (authoring) and Justice Rumi Kumari Phukan
Summary: The Petitioner, declared ‘foreigner’ by the Foreigners’ Tribunal, relied on a certificate issued by the Gaon Panchayat Secretary as a supporting document to prove her residentship in her village. The Court rejected this certificate, holding that such a certificate is not a ‘public document’ under the Indian Evidence Act but a private document.
Facts: The Petitioner was a woman who had been declared a foreigner by the Foreigners’ Tribunal. She had relied on demonstrating linkages to her late father and late husband but was unable to sufficiently do so since the tribunal found a number of discrepancies in her documents. The Petitioner challenged this before the Gauhati High Court, arguing that the FT had taken a very technical view despite sufficient evidence.
In her support she presented a school certificate certifying that she had left the school after class-IV, extracts from the 1951 NRC showing the names of her father and mother, the 1966 Voters List showing the name of her father as a resident of village Sukhatikhata, a land document and a certificate from the President of the Sahebganj Gaon Panchayat stating that the petitioner was a resident of village within the Panchayat’s jurisdiction.
Further, she presented an additional certificate issued by the Gaon Panchayat Secretary countersigned by the Block Development Officer, certifying the petitioner as a resident within his jurisdiction. This document had not been presented before the FT. The State Coordinator, NRC stated that such certificates were issued on a regular basis to thousands of people and they were authorised by the Ministry of Home Affairs, Government of India, rather than the Assam Panchayat Act, 1994. G.P. Certificates were issued by placing evidence before the Gaon Panchayat Secretary. These certificates had been issued following the decision of the Cabinet Sub-Committee taken in 2012-13 to support residential status of married women by including this document as a supporting document to show linkages with ancestors to the list of documents admissible for inclusion of name in NRC. The State Coordinator, NRC stated that these documents had been agreed upon by various stakeholders in the course of meetings with them.
Holding: The Court agreed with the verdict of the FT and found no error or infirmity in it. The Court undertook an independent assessment of the evidence presented to ‘satisfy [itself]’ about the correctness of the view taken by the FT (paragraph 31). The evidence presented by the Petitioner was found to have multiple contradictions and discrepancies and declared unreliable.
After dismissing the aforementioned petition on merits, the Court turned its attention to the “larger issue,” which it considered to be the legality and evidentiary value of the certificate issued by the Gaon Panchayat Secretary (“G.P. Certificate”). The Court found no power to issue such certificates by the Gaon Panchayat in the Assam Panchayat Act, 1994, and the Rules made therein.
The Court observed that it was superfluous for the State to create new documents such as the GP Certificate and found the pre-existing documents in the list to be sufficient. The Court relied on Sabrananda Sonowal v. Union of India (2005 & 2007) wherein the Supreme Court describes “the large scale influx of illegal immigrants”, to assert that introduction of new documents aggravates the situation as described by the Supreme Court. The court expressed caution using the facts of these cases against the instream of immigrants. It reasoned that since the number of illegal immigrants resembles the number of the G.P Certificates that had been issued, they were connected and demanded the restriction of these certificates.
After investigating the files of the Political Department, Assam submitted by the State, the Court held that neither the Cabinet Sub-Committee nor any other authority had explicitly authorised the issuance of the GP Certificate. Therefore, the Court concluded that the GP Certificate was not a ‘public document’ under Section 74 of the Indian Evidence Act, 1872 and was instead a ‘private document’ under Section 75. This means that the Gaon Panchayat Secretary (and the Block Development Officer countersigning it) would have to prove the truthfulness of the contents of the GP Certificate and be responsible for its contents. If the certificate holder is declared as a foreigner by an FT, then the act of awarding such a certificate may even be construed as harbouring an illegal migrant.
Significance: The Court’s reasoning can be epitomised by its own rhetorical question: “Is it really the duty of the State to facilitate such an exercise when it is for the applicant to justify his claim for inclusion in the updated NRC by producing necessary documentary evidence?” (paragraph 45). By taking such a stance the Court ignored the practical realities of the discrmination that the citizenship procedure perpetrates given that the migration of married women from their parental home to matrimonial home makes them specifically vulnerable. Due to poverty, illiteracy and early marriages, many women–especially Muslim women–are left with little to no documentation on their birth and schooling. As a result, most of the documents that the Court deemed sufficient are difficult to access for women. In light of this, the certificates issued by the Gaon Panchayat Secretary become imperative for proving citizenship. To restrict such documents over a vague idea of national security is unfounded and the court does not declare a clear legal reasoning for prioritising the latter, which makes their decision questionable. The fact that such certificates are also explicitly limited to being supporting documents also makes it unclear how they can by themselves threaten national security. Such undermining of evidence adds to the confusion that the Court has created with prior judgments about evidentiary value of various documents for proving citizenship.
The legal basis for the inquiry by the High Court into the issue of GP Certificates as a part of the Petitioner’s petition is also unclear. It can also be inferred from the judgement that the evidentiary value of GP Certificate was irrelevant to the Court’s verdict against the Petitioner since it concluded its assessment of the FT’s order before embarking on its inquiry into the GP Certificate issuance. The Supreme Court has since overruled this judgement in 2018 on similar grounds (our analysis here). Following this judgement in Rupajan Begum v. Union of India, GP Certificates are now valid in law as supporting documents only to establish a linkage between the holder of the certificate and the person(s) from whom legacy is being claimed.
Table of Authorities:
L.I.C. v. Rampal Singh Bisen, (2010) 4 SCC 491.
State v. Moslem Mondal, 2013 (1) GLT 809.
Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.
Sarbananda Sonowal v. Union of India, (2007) 1 SCC 174.
Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.
Resources:
Amnesty International India, ‘Designed to Exclude: How India’s Courts are Allowing Foreigners’ Tribunal to Render People Stateless in Assam’ 2019.
M. Mohsin Alam Bhat, ‘Twilight Citizenship’ 729 Seminar (May 2020).
D.Bhattacharjee, ‘NRC for Assam: A flawed design’ Citizens for Justice and Peace, 7 January 2021.
Simantik Dowerah, ‘Conflicting judgments, absence of guidelines, litany of documents: India's citizenship conundrum is a mess’ Firstpost, 22 February 2020.
Alok Prasanna Kumar, ‘To What End This Exercise’ The Hindu, 2 August 2018.
‘Assam Foreigners Tribunals: How procedures, laws failed to consider gender discrimination’ Counterview, 2 December 2018.
Chandan Nandy, ‘Citizens or Aliens? Assam’s Muslim Women Hang by a Gossamer Thread’ The Quint, 15 November 2017.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and the latest developments in citizenship law and adjudication in India. This note was prepared by Farhan Zia.