Gauhati High Court’s citizenship order is flawed because it ignores Indian reality

While putting onus on people to prove their citizenship, Indian courts have failed to establish some kind of standard for how one can discharge such a burden.

Villagers whose names are missing in the final list of National Register of Citizenship stage a protest in Assam | Photo: PTI

She had as many as eight documents to prove her Indian citizenship. These included her Class 9 certificate mentioning her father’s name; a certificate issued by her village headman noting her marriage; a certificate issued by the OBC Development Board in Golaghat recognising her caste; copies of three voter lists whose entries included her grandmother, grandfather, and father; a Jamabandi copy; and an elector photo identification of her mother.

But all these documents were not enough. The Gauhati High Court declared last week that the person who presented these documents had “utterly failed to prove her linkage to Indian parents relatable to a period prior to the cut-off date of 25.03.1971 through cogent, reliable and admissible documents”.

Coming in the wake of widespread anxiety and fear over the denaturalisation of millions of Indians, this court ruling is crucial. It raises questions of burden of proof, state capacity and the court’s power.

The high court found there was no examination that could “prove” the contents of certain documents, that “reflection of a name in a document is wholly insufficient and without relevance if the … writ petitioner is unable to connect herself to such entity”. Moreover, oral testimony could be of no use. For the court, any reliance on such testimony would somehow mean an exclusive and complete reliance on it, declaring that “oral testimony alone is no proof of citizenship”.

Concerns with court’s reasoning

The Gauhati High Court’s decision was based on Section 9 of the Foreigners Act of 1946. As per this provision, the burden of proof with regard to one’s status rests on the person in question. The court underlined this provision, observing that the question “as to whether the proceedee is a foreigner or not” is one that “absolutely rests upon the proceedee” for the reason that “the relevant facts being especially within the knowledge of the proceedee”.

There are at least two serious concerns with the court’s reasoning. The first relates to Section 9 of the Foreigners Act. The Gauhati High Court’s decision is not the first time that the judiciary has highlighted the importance of this provision. In the 2005 case of Sarbananda Sonowal vs Union of India, the Supreme Court had struck down the Illegal Migrants (Determination by Tribunals) Act, 1983. In the decision – whose characterisation of Muslim immigrants as insurgents has made it among the most infamous verdicts in the institution’s history – the Supreme Court had observed that “the general rule in the leading democracies of the world is that where a person claims to be a citizen of that country, the burden is on him to prove that he is a citizen of that country”.

Surveying similar provisions in countries like the United States and the United Kingdom, the Supreme Court had noted that there was a “good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country”. This reason was simple: the facts that were relevant to establishing citizenship, such as one’s place of birth, would be best known to the person concerned. The pertinent facts, the court felt, “would necessarily be within the personal knowledge of the person concerned and not of the authorities of the state”.

This is well and good, but where the burden of proof lies does not tell us how it should be discharged. The analogy to provisions in countries like the US and the UK miss the crucial reality of the Indian scenario. In a country with poor state capacity and weak documentation, persons do not have the mechanisms required to provide a fact that may well be within their personal knowledge. After all, it is not sufficient to know where one was born; one has to be able to prove it as well.

Abdicating jurisdiction

In countries that have more robust documentation and stronger state capacity, there may be good reasons to pay little attention to the ability to prove a fact of this kind. But in India, the reality is central to the lived reality of citizenship-based claims.

Given this, courts cannot simply highlight Section 9 of the Foreigners Act. They need to establish some kind of standard for how one can discharge such a burden, and that standard needs to internalise the documentation practices that exist in the country. A high standard, such as the kind clearly imposed by the Gauhati High Court, follows a perverse logic: persons are condemned to live under a weak state whose bureaucratic and administrative apparatus do not provide them even with basic documents, and they are then punished for the inability of the state.

The second critical flaw in the Gauhati High Court’s decision is a misunderstanding of its own power. The court observed that “the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction” meant that it “would refrain from reviewing the findings of facts reached by the [Foreigners’] Tribunal”.

In the Indian Constitution, a key difference between the writ jurisdiction of the Supreme Court under Article 32 and of the high courts under Article 226 is that the latter is considerably wider in scope. It empowers the high courts to issue directives, orders, or writs in cases that extend beyond the fundamental rights – they can be issued “for any other purpose”. Further, such orders can be issued “to any person or authority”. Nothing in Article 226 limits the high courts from reviewing questions of fact.

Indeed, India’s higher judiciary has a long history of establishing its own findings of a fact in the exercise of its writ jurisdiction. In choosing to “refrain from reviewing the findings of facts”, the Gauhati High Court did not conform to its jurisdiction. It abdicated it.

Madhav Khosla is the author of India’s Founding Moment: The Constitution of a Most Surprising Democracy. Views are personal.