Onus On Individual To Prove Claim Of 'Fear Of Religious Persecution' For Exemption Under Foreigners Act: Calcutta High Court

"Onus to provide documentation, confirming citizenship or right to stay/overstay in India lies upon the questioned person/petitioner, shifting the burden away from the state," Calcutta High Court, in a significant ruling, held that the burden of proving a claim of "fear of religious persecution" to seek exemption under the Immigration and Foreigners Act, 2025, lies squarely upon the individual and not the State.

A single-judge bench of Dr. Justice Ajoy Kumar Mukherjee observed that while the law provides exemptions for persecuted minorities from neighbouring countries, such claims cannot be mere afterthoughts to escape criminal proceedings for overstaying.

Court Explains Statutory Framework For Exemption

The petitioner, a 27-year-old Hindu woman from Bangladesh, had moved the High Court seeking the quashing of proceedings initiated against her under Section 21 of the Immigration and Foreigners Act, 2025. She contended that having entered India before the December 31, 2024 cutoff, she was entitled to statutory protection as a persecuted minority. The prosecution, however, alleged that the petitioner entered on a tourist visa and only raised the plea of religious persecution after being charged for overstaying.

The petitioner entered India on December 7, 2024, with a valid passport and tourist visa, which expired in January 2025. During her stay, she married an Indian citizen but later alleged matrimonial cruelty at the hands of her husband and in-laws. She claimed that when she attempted to lodge a police complaint against them, the authorities instead registered a case against her for loitering without valid travel documents at the behest of her husband.

The primary question before the court was whether a person claiming to be a victim of religious persecution is entitled to an automatic quashing of criminal proceedings under the Act of 2025. The court was also called upon to determine the nature of the burden of proof required to establish such a claim under Section 16 of the Act.

Court Analyzes The 'Reverse Onus' Clause Under Section 16

The Court highlighted that Section 16 of the Immigration and Foreigners Act, 2025, contains a "burden of proof" clause that mirrors Section 9 of the erstwhile Foreigners Act, 1946. This provision mandates that whenever a question arises as to whether a person is a foreigner of a particular class, the onus of proving their status lies upon that person. This "reverse onus" makes the requirement absolute for the individual, shifting the responsibility away from the investigating agencies.

Legislative Intent Of The 2025 Act

The bench noted that the 2025 Act, while repealing the 1946 Act, was designed to strengthen national security and regulate the stay of foreigners. The Court observed that the legislative intent behind Section 16 is to streamline immigration and allow authorities to take necessary actions, including deportation, if an individual fails to establish their right to stay.

"The onus to provide documentation, confirming citizenship or right to stay/overstay in India lies upon the questioned person/petitioner, shifting the burden away from the state."

Requirements To Establish Fear Of Religious Persecution

Justice Mukherjee detailed the evidentiary standards required to substantiate a claim of "fear of religious persecution" under Order 3(e) of the Exemption Order, 2025. The Court held that such a claim requires more than a "vague claim" to escape punishment. It necessitates a demonstration through credible testimony, documentary evidence like police reports or medical records from the home country, or evidence of forced concealment of religious beliefs.

Court Rejects Plea To Quash Criminal Proceeding

Regarding the petitioner's argument that the Citizenship (Amendment) Act (CAA) should lead to the abatement of proceedings, the Court held that the claim of religious persecution was a matter of trial. The Court noted that since the petitioner entered on a tourist visa and did not initially claim persecution, the veracity of her "fear" must be adjudicated through evidence.

Inherent Powers Under Section 482 CrPC To Be Used Sparingly

The Court reiterated the principles laid down in Som Mittal Vs. Government of Karnataka, stating that inherent powers to quash proceedings must be exercised with extreme circumspection. It found that the present case did not fall into the "rarest of rare" categories where trial would result in a grave miscarriage of justice. Given the reverse onus clause, the Court found no reason to bypass the trial process.

"Exercise of inherent power under section 482 is not the rule but it is an exception and such exception can be applied only when it is brought to the notice of the court that grave miscarriage of justice would be committed if the trial is allowed to proceed."

Dismissing the revision petition, the Court clarified that it had not expressed any final opinion on the merits of the petitioner's claim. The Trial Court was directed to decide the matter expeditiously and independently of the observations made in this judgment. The Court further directed that the relaxation of bail conditions previously granted to the petitioner would continue during the trial.

The High Court concluded that the statutory exemption for persecuted minorities is not a self-executing shield that automatically halts prosecution. An individual must prove their entitlement to such a class through a trial, especially when the State challenges the claim as an afterthought. The ruling reinforces the strict interpretative standard applied to immigration laws concerning the burden of proof.

Date of Decision: 06 May 2026