The Gauhati High Court has granted bail to a man declared an illegal migrant by a Foreigners’ Tribunal, holding that his migration to Assam as a child during the 1964 anti-minority violence in former East Pakistan indicates his initial entry into India was legal.
Despite granting bail, a division bench comprising Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund dismissed the petitioner’s plea to set aside the tribunal’s order or send the case back for fresh consideration. The ruling was issued on August 4.
Presumption of Legal Entry During Persecution
The high court’s decision to grant bail rested on testimony given during the petitioner’s cross-examination, where he stated that he entered Assam from East Pakistan alongside his father when he was eight or nine years old.
The court noted that this timeline aligns with the 1964-65 communal riots in East Pakistan, which triggered an exodus of persecuted Hindu minorities into India. Based on these circumstances, the bench held that the petitioner’s movement across the border appears not to have been illegal.
Additionally, tribunal records inspected by the high court revealed an entry in a Refugee Identity Card Register. The document listed the projected father’s name along with the petitioner as having entered Indian territory from East Pakistan in 1964. However, these refugee documents had never been formally presented or exhibited as evidence during the tribunal proceedings.
Failure to Establish Pre-1971 Indian Lineage
While recognizing the context of his arrival, the high court affirmed the December 19, 2016 Foreigners’ Tribunal decision that declared the petitioner an illegal migrant belonging to the post-March 25, 1971 stream.
The court explained that the petitioner failed to meet the legal burden of establishing parentage or a verifiable link to anyone residing in India prior to the cutoff date of March 25, 1971. The bench pointed out that the petitioner had neither specified his date of entry nor pleaded refugee status when his case was originally heard by the tribunal.
Evidentiary Flaws and Procedural Background
In his attempt to prove Indian citizenship before the tribunal, the petitioner had submitted four key documents: a registered land sale deed dated November 26, 1966 in his projected father’s name, a 1997 voter list bearing his own name, and relationship certificates issued by a local Gaonburah (village headman) and the Simenmukh Gaon Panchayat.
While the tribunal accepted the 1966 sale deed as authentic under Section 90 of the Evidence Act due to its age, the high court noted that land ownership in the father’s name does not prove parentage on its own. The petitioner did not provide land revenue or inheritance records connecting himself to the property.
Furthermore, the high court supported the tribunal’s rejection of the village headman and panchayat certificates, which were ruled inadmissible private documents because their authors were not called to give evidence. The 1997 electoral roll was also deemed insufficient on its own to prove citizenship since it was generated after 1971.
Appearing for the state, Additional Senior Government Advocate P Sarmah argued that the petitioner failed to establish his lineage through legally valid evidence and had not discharged the statutory burden of proof. The high court accepted these arguments in maintaining the tribunal’s migrant classification while providing relief through bail.
