Why a Gauhati HC order on a citizenship case is important

Over the last two years, several reports have exposed the flawed workings of Assam’s Foreigners’ Tribunals, where individuals accused of being “illegal immigrants” have to prove their citizenship. The reports suggest that these tribunals have followed arbitrary processes, placed the burden of producing extensive documentary proof on marginalised individuals, exercised little genuine independence vis-a-vis the executive, and that their tenure is linked to how many people they can declare to be “non-citizens”. This is particularly serious, given that the stripping of citizenship means the loss of all basic rights, and vulnerability to deportation.

In this context, a recent Gauhati High Court (HC) judgment comes as an important corrective, and raises some hope for bringing the foreigners’ tribunal process more in line with the rule of law.

The tribunal had declared one Haidar Ali to be a non-citizen, despite extensive documentation — including voter lists and property documents — being placed to show that Ali’s parents and grandparents were Indian citizens, and had been so for decades. The tribunal did so on the basis of perverse reasoning — for example, that along with Ali’s parents, there were certain other names in the voting lists that had not been explained; that Ali had stated during oral evidence that he had certain siblings while he had not done so in his written evidence, and that this justified drawing an “adverse inference” against him; and that despite Ali’s father himself testifying to their relationship before the tribunal, a “sufficient link” between the two had not been proven.

The Gauhati HC — speaking through Justice N Kotiswar Singh — set aside the order, and declared Ali to be an Indian citizen. Apart from a careful consideration of the documentary evidence, it noted that the structure of the Foreigners’ Tribunal proceedings was such that those accused of being a foreigner had no knowledge about the circumstances under which they had been referred to the tribunal or the nature of the accusations against them — no documents or evidence had to be furnished to them. In HC’s words, the individual “is totally in [the] dark as to how he came to be considered a foreigner and not an Indian.”

For this reason, the court held that if an individual “introduces new facts to discharge his onus [of proof], it cannot be said to take the State by surprise ... 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.”

HC’s observations are important, as it is an oft-repeated statement that “strict procedural rules” do not apply to the workings of the Foreigners’ Tribunals. More often than not, however, this laxity in procedure is used to the disadvantage of accused individuals — for example, by denying the application of the rules of natural justice. HC, however, restored parity by specifying that in the same manner, strict procedural rules should not be used to shut out an individual’s ability to prove her citizenship.

Justice Singh also made two further important observations. First, he noted that in cases where individuals were illiterate, or where their birth had not been recorded, documentary evidence would be impossible to obtain. In such cases, facts about date or place of birth could be proved by oral evidence. And second, as the standard of proof was one of “preponderance of probabilities”, a few inconsistencies ought not to be used to defeat an individual’s claim to citizenship. Both observations — while not new — bore reiteration by HC, especially in view of the conduct of the Foreigners’ Tribunals.

While the judgment of the Gauhati HC will not solve all the issues that continue to plague the Foreigners’ Tribunals — and inflict great hardship and suffering on ordinary people — it, and more judgments like it, will at least help to restore a semblance of the rule of law to the process.

Gautam Bhatia is a Delhi-based advocate The views expressed are personal