The Gauhati High Court has clarified that a Foreigners Tribunal lacks the jurisdiction to automatically declare the family members of a proceedee as foreigners in the absence of independent references against them.

While the Court upheld the declaration of the petitioner as a foreigner due to her failure to discharge the burden of proof under Section 9 of the Foreigners Act, 1946 it noted that the status of a parent does not automatically extend to children without a dedicated legal proceeding.

A Division Bench, comprising Justice Sanjay Kumar Medhi and Justice Shamima Jahan while referring to Sudhir Kr. Roy vs. Union of India in WP(C)/6790/2018, observed, “It is a settled position of law that until a specific reference is initiated against an individual, no orders of declaration as foreigner of such persons can be made by any Foreigners Tribunal…it has been held that the authorities would be at liberty to initiate a fresh reference against the family members of a person who is declared foreigner but the fact that a family member has been declared a foreigner would not be sufficient by itself to declare the other family members as foreigners without any specific reference”.

Advocate T. Sheikh appeared for the petitioner and J. Payeng, Standing Counsel appeared for the respondent.

The Bench noted that findings of fact reached by a Tribunal based on the appreciation of evidence should generally not be interfered with unless there is a palpable error of law or a violation of natural justice. Consequently, while the petitioner’s status remained unchanged, the Court intervened to protect the procedural rights of her children.

The case involved a reference made by the Superintendent of Police (B), Cachar, against Maya Das, the petitioner, who claimed she was the daughter of Nibaran Chandra Das, citing his name in the 1965 Voters List and 1966 NRC data.

To establish her link, she relied on a school certificate and a Gaon Panchayat certificate. In 2019, the Foreigners Tribunal, Silchar, declared her a foreigner and extended that declaration to her sons, Diju and Pintu, and her daughters, Mukta, Sukta, and Bijoya.

The matter reached the High Court through a writ petition challenging the Tribunal's 2019 opinion, where the petitioner argued that she had provided sufficient evidence of her lineage which remained unrebutted.

Conversely, the State maintained that the burden of proof under Section 9 of the Foreigners Act remains firmly on the proceedee and that the petitioner had failed to provide a legally sustainable link to her projected father.

The High Court noted that the petitioner failed to discharge her burden because the school certificate was not proved by its author and the Panchayat certificate only established marriage, not parentage.

The Court reiterated that oral evidence must be supported by contemporaneous documentary records. However, the Bench found a significant legal error in the Tribunal's decision to declare the children as foreigners. It held that a specific reference is a mandatory prerequisite for such a declaration against any individual.

“In the opinion of this Court, the evidence adduced by the petitioner through herself and the Secretary of the Syedbond Gaon Panchayat would not be sufficient to discharge her burden under Section 9 of the Foreigners Act, 1946”, the Bench noted.

The Court upheld the Tribunal’s order regarding the petitioner but set aside the observations concerning her children. It granted the authorities liberty to initiate fresh references against the family members if deemed necessary. The Bench also noted that the order would not prejudice the petitioner’s right to apply for citizenship under the Citizenship Amendment Act.

Cause Title: Maya Das v. The Union of India and 7 Ors. (Neutral Citation: 2026:GAU-AS:5961)

Appearances:

Petitioner: T. Sheikh, Advocate.

Respondents: J. Payeng, SC R.B. Bora, GA, A.I. Ali, SC and P.S. Lahkar, CGC, Advocates.

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