Gauhati High Court: in a Foreigners Tribunal case, the burden of proving citizenship never shifts from the proceedee

The Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal opinion that had declared a woman a foreigner who entered India after 25 March 1971. The Court reaffirmed that under Section 9 of the Foreigners Act, 1946, the burden of proving that a person is not a foreigner lies entirely on that person, 'notwithstanding anything contained in' the Indian Evidence Act, 1872 — a non-obstante clause that overrides the ordinary rules on who must prove what. Citing the Supreme Court's judgment in Sarbananda Sonowal v. Union of India, it held that a proceedee must plead, at the very least, their date and place of birth, their parents' names, and their parents' place of birth and citizenship, since these facts lie peculiarly within the proceedee's own knowledge.

The petitioner's written statement disclosed none of this, and her evidence — a set of old voters' lists and a land record — was inconsistent on names, dates and villages, and contradicted her own witnesses. The Court also recalled that, exercising certiorari jurisdiction under Article 226, it does not reappreciate evidence or sit in appeal over a Tribunal's findings of fact, and can interfere only for an error of law apparent on the record.