Gauhati HC cites SC verdict to explain difference between courts, tribunals; says rules of evidence not applicable in Foreigners' Tribunal for proving citizenship

The Gauhati High Court has observed that strict rules of evidence are not applicable in Foreigners’ Tribunal (FT) for proving citizenship. Delivering the verdict on a writ petition filed by 65-year-old Idrish Ali challenging the order passed by the Foreigners’ Tribunal, Jorhat that declared him to be a foreigner, the court stated that ‘nothing is required to be proved beyond all reasonable doubt’.

The petitioner had produced 11 documents including the voters’ lists of 1985 and 1989 containing his name. But all evidence was rejected by the Tribunal, observing that since the petitioner admitted he is 65-years-old, he should have been born sometime in 1953 and by the year 1974, he should have been enrolled in the voters’ list. The Tribunal also observed that “surprisingly, he is not named even in the Voters’ List of 1975”. Therefore, the Tribunal held that he could not establish linkage prior to 1971.

Ali was taken into custody by the border police in September 2019, and since has been lodged at the Jorhat Detention Camp. In the high court, the division bench comprising Justice Manojit Bhuyan and Justice Parthivjyoti Saikia held that the observation of the Tribunal pertaining voters’ lists was ‘perverse’.

“…the entire opinion of the Tribunal suffers from perversity. Such an opinion must not sustain”.

The high court referred to the differences between tribunals and courts explained by the Supreme Court in the decision Union of India Vs R Gandhi, on the basis of which the court observed that strict rules of evidence are not applicable to Foreigners’ Tribunal.

“Courts are established by the State and are entrusted with the State’s inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are Tribunals. But all Tribunals are not courts,” the bench observed.

While asking the Tribunal to make fresh opinion after considering the documents (Voters’ Lists of 1985 and 1989) on merit, the court directed the Superintendent of Police (Border), Golaghat to make necessary arrangement to produce the petitioner, Ali, before the Foreigners Tribunal, Jorhat on 17 March. The court added that Ali may apply for bail before the Tribunal with documents in his support.

“The proceeding before the Tribunal shall be concluded within a period of 60 days from March 17, 2020,” the court held.

Earlier in February, the Gauhati High Court had dismissed a writ petition by 50-year-old Jabeda Begum challenging a decision by Foreigners’ Tribunal, Baksa that stated her to be a foreigner. Jabeda had produced as many as 15 documents including NRC contents, land revenue paying receipt, voter list, PAN card, bank documents, ration card, Gaon Bura (village headman) certificate as evidence before the court.

The same division bench observed that the petitioner could not file any documents to link herself with her projected parents or her projected brother. The high court stated that it could not find any perversity in the decision of the Tribunal.

The Gauhati High Court also said that an electoral photo identity card is not conclusive proof of Indian citizenship, but has to be proved by admissible evidence, which is by the evidence of those persons who can vouchsafe for the truth of the facts in issue. The division bench gave the judgment while hearing a writ petition filed by Babul Islam from Margherita in Assam’s Tinsukia district.