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School headmaster’s testimony missing, Assam woman declared foreigner Gauhati HC uphold's FT order, insists on testimony of issuing authority to authenticate documents

06, Mar 2020 | CJP Team

In yet another example of how challenging it has become for people to prove their citizenship, the Gauhati High Court has ruled that a school leaving certificate needs to be authenticated by providing the testimony of the issuing authority. The court ruled against the suspected foreigner in the case because she failed to get her school headmaster to testify to this effect.

It is well known that when it comes to providing proof of citizenship, the burden of proof lies on the proceedee instead of the prosecution. This is unlike proceedings in criminal cases where the accused is presumed innocent until proven guilty.

Now that the final NRC has been published, and 19,06,657 people have been excluded from the final list, CJP’s campaign has become even more focused. Our objective now, is to help these excluded people defend their citizenship before Foreigners’ Tribunals. For this we have already started conducting a series of workshops to train paralegals to assist people at FTs. We will also be publishing a multi-media training manual containing simplified aspects of legal procedure, evidentiary rules, and judicial precedents that will ensure the appeals filed against the NRC exclusions in the FTs are comprehensive and sound, both in fact and in law. This will assist our paralegals, lawyers and the wider community in Assam to negotiate this tortuous process. For this we need your continued support. Please donate now to help us help Assam.

In the present case, Sahera Khatun provided12 documents to provide linkage to her ancestors. These included seven voters lists that contained names of her grandparents, parents and siblings along with her own. She also submitted a copy of her school leaving certificate from Omkar Sarkar School in Khatara. This certificate gave her date of birth as February 2, 1978. She also submitted certificates issued by two Gaon Burahs from Laruajan and Kanhara villages.

Additionally, her mother and brother also gave oral evidence. But their oral testimonies were discarded for lack of supporting documentary evidence. Moreover, her mother could not turn up for the cross examination. But a division bench of Justice Manojit Bhuyan and Parthivjyoti Saikia ruled, “We would observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship.”

With respect to her school leaving certificate, the bench ruled, “Although an argument can be made that since the school in question at Exhibit-9 is a provincialised school and on that account the Certificate is admissible in evidence, we may observe that a document which is found admissible is not the end of the matter. The content of the same has to stand proved through the legal testimony of the Issuing Authority. In the present case the Headmaster of the school in question was not examined to prove the contents of the Certificate.”

Over the last two years, CJP has been bringing to you stories of people’s struggle to prove their citizenship, first in Foreigners’ Tribunals and then in the Gaujati High Court. The odds are against them, especially in case of married women who rarely have any documentary evidence as they are usually born at home in the village, rarely sent to school and then married of before their names are entered in the voter’s list. But even when they do have documents as in the case of Sahera Begum, they are made to jump through hoops and their families are dubbed “projected families” as if in a final insult to their injury.

The entire order may be read below.

 

Related:

CJP in Action: Two men released from detention camp after CJP intervention 

Hurdles in releasing detention camp inmates cause anxiety in Assam 

Mere absence after filing documents not justification for FT order against proceedee: Gauhati HC 

 

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