The Gauhati High Court has reaffirmed that an electoral photo identity card is not a conclusive proof of citizenship and it cannot be considered while assessing whether a person is a foreigner under the Assam Accord of 1985.
The division bench comprising Justice Manojit Bhuyan and Justice Parthivjyoti Saikia has reiterated the law laid down by the high court in Md. Babul Islam v. State of Assam, WP(C) No. 3547/2016. A co-ordinate bench had held therein that merely producing an Elector Photo Identity Card in the absence of supporting evidence would not be a proof of citizenship.
The observation has been made in a writ petition filed against an order of the Foreigners Tribunal, Assam, whereby the Petitioner was declared to be a foreigner of post 1971 stream under the Assam Accord.
Under the Assam Accord, foreigners are classified under three heads. It stipulates that all residents of Assam who entered the state until January 1, 1966 would be ‘regularised’. Those who came between 1966 and 25 March 1971 would be disenfranchised for ten years, meaning that they were to get voting rights only after expiry of 10 years from the date of their detection or declaration as foreigner. And lastly, those who came to Assam on or after March 25, 1971 shall continue to be detected, deleted and expelled in accordance with the law.
In this backdrop, a notice was issued to the Petitioner asking him to prove his Indian citizenship.
During proceedings before the Foreigner’s Tribunal, he produced four documents viz.:
- An Electoral Photo Identity Card;
- A Registered Sale Deed of 1964;
- A Sale Deed of 1970.
- A Voter List of 1997 bearing his name;
As aforementioned, the court held that an Electoral Photo Identity Card holds no evidentiary value for the purposes of determining citizenship.
With regards the sale deeds, the Tribunal held that the same had not been proved in the manner as required by law. The HC concurred with this finding by observing :
“Regarding Electoral Photo Identity Card this court in the case of Md. Babul Islam Vs. State of Assam [WP(C) No. 3547 of 2016] has held that Electoral Photo Identity Card is not a proof of citizenship”
As regards sale deed, the Court observed :
“Sale Deeds are private documents, therefore, they must be proved in accordance with law. In the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal reported in (2003) 8 SSC 745, the Supreme Court has reiterated the legal position that marking of documents as exhibits and their proof are two different legal concepts. Mere production and marking of a document as exhibits cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouch safe for the truth of the facts in issue.“
The high court further held that the Tribunal was right in not taking into account the voters list as the same did not prove that the Petitioner had entered the state prior to the cut-off date, i.e., March 25, 1971. It said,
“The petitioner herein has failed to file voter lists prior to 1997, thereby the petitioner failed to prove that he has been staying in Assam prior to 25.03.1971.“
Accordingly, the bench concluded that the Petitioner had failed to prove that he entered the state before the cut-off date and held him to be a ‘Foreigner’ of post 1971 stream.
Before parting, the bench clarified that a writ court does not have the power to re-assess the evidence and that the present case was an exercise of mere self-assurance.
“The power of the Writ Court exercising jurisdiction under Article 226 of the Constitution of India is supervisory only, not appellate/reviewing. The opinion of the Tribunal is based on facts. As a Writ Court we would not have gone into evidence. We just wanted reassure ourselves and we find that there is no perversity in the decision of the Tribunal. Hence, we find that this writ petition is devoid of merit,” the bench said.
Case Title: Munindra Biswas v. Union of India & Ors.
Case No.: WP (C) No. 7426/2019
Quorum: Justice Manojit Bhuyan and Justice Parthivjyoti Saikia
Appearance: Senior Advocate GP Bhowmik (for Petitioner); Standing CGC G. Hazarika (for UoI); Standing Counsel J. Payeng (for Foreigners Tribunal)