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by sayum
27 July 2026 3:39 PM
"It is no longer res integra that the burden of proof as laid down in Section 9 of the Foreigners' Act of 1946, is solely upon the proceedee and the said burden never shifts," Gauhati High Court, in a significant judgment, has reaffirmed that the burden of proving Indian citizenship under Section 9 of the Foreigners Act, 1946, rests exclusively on the individual and never shifts to the State.
A division bench of Justice Kalyan Rai Surana and Justice Shamima Jahan observed that mere medical prescriptions, particularly those for physical ailments like Parkinson’s disease, cannot be used to justify material contradictions in a proceedee’s testimony by claiming mental illness.
The court made these observations while dismissing a writ petition challenging an order of the Foreigners Tribunal-5, Morigaon, which had declared the petitioner a foreigner of the post-March 25, 1971 stream. The petitioner had sought to set aside the Tribunal’s opinion, arguing that he was the son of an Indian citizen but suffered from mental health issues that led to discrepancies in his legal statements.
The petitioner was referred to the Foreigners Tribunal after being suspected of being a non-citizen. Before the Tribunal, he claimed to be the son of one Abdul Jabbar, relying on voter lists from 1966 and 1971 featuring his father's name, as well as a 1957 sale deed belonging to his grandfather. However, the Tribunal noted sharp contradictions between the testimonies of the petitioner and his wife regarding the death of his parents and the number of siblings, leading to his declaration as a foreigner.
The primary question before the court was whether the petitioner had discharged the burden of proof required under Section 9 of the Foreigners Act, 1946. The court also considered whether the petitioner could take shelter under the Mental Healthcare Act (MHCA), 2017, to explain away contradictions in his evidence, and whether unproven certificates from village authorities could be admitted as proof of linkage.
Burden Of Proof Under Section 9 Is Absolute
The High Court emphasized that Section 9 of the Foreigners Act, 1946, contains a non-obstante clause which dictates that the onus of proving a person is not a foreigner lies solely on that person. The bench noted that this provision overrides the general principles of the Indian Evidence Act, 1872.
Citing the landmark Supreme Court decision in Sarbananda Sonowal v. Union of India, the court reiterated that since facts regarding one’s birth, parentage, and residence are within the personal knowledge of the proceedee, they must be the ones to establish them. The bench observed that the State authorities cannot be expected to lead evidence on facts that are not within their knowledge.
"The burden of proof as laid down in Section 9 of the Foreigners' Act of 1946, is solely upon the proceedee and the said burden never shifts."
Distinction Between Parkinson’s Disease And Mental Capacity
The petitioner argued that his contradictory statements arose because he was a psychiatric patient suffering from 'Schizophrenia'. However, the court found that the medical records produced—specifically an OPD ticket—only prescribed medicines for Parkinson’s disease. The bench noted that Parkinson’s is a nervous system disorder affecting movement and does not necessarily equate to a lack of mental capacity.
The court further highlighted that the petitioner failed to invoke Section 105 of the Mental Healthcare Act, 2017, during the Tribunal proceedings. Under this section, if mental illness is alleged, the court must refer the person to a medical board for scrutiny. Since the petitioner merely relied on a prescription without following the statutory procedure, the court refused to accept the plea of mental illness.
"In the instant case, only a prescription is relied upon, which is not sufficient to hold that the proceedee is a psychiatric patient... the medicines show treatment for ‘Parkinson’s disease’ which has no relation with mental illness."
Inadmissibility Of Unproven Certificates
Regarding the certificates issued by the Gaonburha (Village Headman) and the Gaon Panchayat President, the court held that these documents carry no evidentiary value unless the issuing authorities are examined as witnesses. The court relied on the precedent set in Romila Khatun v. Union of India, which mandates that the contents of a document must be proved by the person who authored it.
The bench found that the petitioner’s linkage to his projected father was not established because the 1966 and 1971 voter lists showed Abdul Jabbar as a single voter. No contemporaneous document showed the petitioner’s name alongside his father’s name during the period they were both allegedly residing together.
"Documentary evidence would have to be proved on the basis of the record... A document or the contents of the document cannot be proved on the basis of personal knowledge."
Limited Scope Of Certiorari Jurisdiction
The court underscored that its jurisdiction under Article 226 of the Constitution is supervisory and not appellate. It stated that a writ court should not re-weigh evidence or substitute its own findings of fact for those of the Tribunal unless the order is palpably erroneous or without jurisdiction.
Referring to T.C. Basappa v. T. Nagappa, the bench noted that a writ of certiorari is a high prerogative remedy and cannot be issued on mere asking. Since the Tribunal’s findings were based on a thorough appreciation of the facts and the petitioner's failure to discharge his burden, the High Court found no reason to interfere.
The High Court concluded that the petitioner failed to establish a valid linkage to his projected ancestors through admissible evidence. Consequently, the court upheld the Tribunal's order declaring the petitioner a foreigner and dismissed the writ petition. The interim protection previously granted to the petitioner was vacated, and the court directed the authorities to proceed in accordance with the law.
Date of Decision: 26 June 2026
