SC to consider an alleged Hindu fisherman’s case for Indian citizenship and benefit under CAA; stays HC’s decision declaring him as ‘foreigner’, issues notice

Supreme Court: In a special leave petition (criminal) by an Indian citizen against a decision of Gauhati High Court, whereby his petition assailing the decision rendered by the Foreigners Tribunal, Morigaon, Assam was dismissed and affirmed the view that he was foreigner, the Division Bench of PS Narasimha and Manoj Misra, JJ. allowed the petition and issued notice. The Court also stayed the operation of the impugned decision.

The petitioner is Hindu fisherman and has been living with his family members including his wife and three sons who have been declared as Indian citizens, except the present petitioner by the High Court in Arabinda Biswas v. Union of India, 2024 SCC OnLine Gau 423. As per the requirement under Section 9 of the Foreigners Act, 1946, the petitioner and his family were required to prove that they were not foreigners. The petitioner’s case was that the High Court set aside the Tribunal’s decision to the extent of declaring his wife and three sons as foreigners and viewed them as Indian citizens. The petitioner contended that he is a Hindu and migrated from Bangladesh prior to 31-12-2014, hence, entitled to have the benefit of Citizenship Amendment Act, 2019 passed by the Parliament and he is entitled for the legislative protection, and not treated as illegal migrant. The petitioner’s plea was that he is suffering from cancer, and it is not possible for him to be isolated from his family, who have been declared as ‘Indian Citizen’.

Section 9- Burden of proof. —If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person.

The petitioner also contended that the Tribunal has declared the petitioner and his as foreigners post 25-03-1971, without even considering their case and without looking into the various documents exhibited relating to voters list from various years and birth certificates of their children.