Summary
The appellant, declared a foreigner by a Foreigners Tribunal in Assam and unsuccessful before the High Court, argued that the authorities had been pedantic in discarding his voter-list and school-certificate evidence and that his subsequent inclusion in the 2018 draft NRC nullified the declaration. The Court held that the concurrent findings were not perverse given the Section 9 burden on the proceedee, and that under paragraph 3(2) of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, as explained in Abdul Kuddus, a person already declared a foreigner could not be included in the NRC and such inclusion would not annul the Tribunal's declaration.
Issues
- Whether the findings of the Foreigners Tribunal and the High Court that the appellant failed to prove he is not a foreigner suffer from any legal infirmity warranting interference under Article 136 of the Constitution.
- Whether inclusion of the appellant's name in the draft National Register of Citizens published in 2018 renders invalid the Tribunal's earlier declaration, affirmed by the High Court, that he is a foreigner.
Provisions considered
- Section 9, Foreigners Act, 1946The burden of proving that he is not a foreigner lies on the proceedee; the appellant therefore had to establish by cogent evidence that he or his ancestors entered Assam before 25.03.1971. The voter lists related to a person in a different village with no explanation of migration, and the duplicate school certificate obtained ten years after leaving school was not proved by the headmaster. (¶¶ 13, 14, 15, 16)
- Article 136, Constitution of IndiaConcurrent findings of the Tribunal and High Court that the burden was not discharged were not perverse, manifestly erroneous or unreasonable, and no admissible evidence was shown to have been ignored or misread, so interference was declined. (¶¶ 12, 16, 17)
- Rule 4A and paragraph 3(2) of the Schedule, Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003Rule 4A(4) makes the Schedule govern preparation of the NRC in Assam; paragraph 3(2) of the Schedule provides that persons declared illegal migrants or foreigners by the competent authority shall not be included in the consolidated list. Following Abdul Kuddus v. Union of India, the competent authority is the Foreigners Tribunal, and a person so declared cannot be included in the NRC. (¶¶ 19, 20, 21, 22, 23, 24, 25, 26, 27)
Held
- Section 9 of the Foreigners Act, 1946 places the burden on the proceedee to prove he is not a foreigner. Where the earlier voter lists relied upon related to a person in a different village from the one of which the appellant claimed to be a resident, the appellant had to state in his affidavit or prove by documents that his ancestors migrated between the villages; in the absence of any such claim, the Tribunal rightly discarded the probative value of those entries. (¶¶ 13, 14, 15)
- A duplicate school leaving certificate obtained ten years after the appellant left the school, without proof of loss of the original and without examining the headmaster, was rightly doubted. (¶¶ 5, 15)
- Concurrent findings of the Foreigners Tribunal and the High Court that the proceedee failed to discharge his burden, which are neither perverse nor manifestly erroneous nor unreasonable, and which are not shown to have ignored or misread any admissible evidence, do not warrant interference under Article 136 of the Constitution. (¶¶ 16, 17, 18)
- Under paragraph 3(2) of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, read with Rule 4A, the names of persons declared illegal migrants or foreigners by the competent authority, which is the Foreigners Tribunal, shall not be included in the NRC. A person already declared a foreigner by the Tribunal could not have been included in the draft NRC published in 2018, and even if included, the inclusion would not annul the Tribunal's declaration. (¶¶ 19, 23, 24, 25, 26, 27, 28)
Result
Appeal dismissed; the interim release order discharged; the appellant to be treated and dealt with as a foreigner; pending applications disposed of.