Rupajan Begum vs Union Of India

3. The challenge in this group of

appeals is to an order of the Gauhati High

Court dated 28th February, 2017 by which

document No.xiii (i.e. Certificate issued

by the Secretary of the Village Panchayat

and countersigned by the local revenue

official in respect of females who have

migrated to other villages after marriage

or such certificates issued by

jurisdictional circle officers in respect

of urban areas) mentioned in the

'illustrative list of documents

admissible' as a supporting document has

been held by the High Court to be invalid

in law and hence of no effect in the

process of verification of claims for

inclusion in the NRC. The High Court had

passed the aforesaid order in a writ

proceeding [i.e. Writ Petition (Civil)

No.2634 of 2016 (Monowara Bewa @ Manora

Bewa Vs. The Union of India & Ors.)] 4

wherein the validity of an order of the

Foreigners Tribunal holding the writ

petitioner – Monowara Bewa @ Manora Bewa

to be a foreigner was in question. The

High Court found the contentions advanced

in the writ petition to be without any

merit and substance and the order of the

Tribunal, on the materials before it,

holding the writ petitioner – Monowara

Bewa @ Manora Bewa to be a foreigner to be

justified in law.

4. The writ petitioner – Monowara

Bewa @ Manora Bewa in support of her claim

to be an Indian citizen had additionally

laid before the High Court a certificate

issued by the Gaon Panchayat Secretary of

the kind noticed above. The High Court

could have and, in fact, had decided the

writ petition on the basis of the

materials laid before the Tribunal without 5

adverting to the aforesaid certificate and

on that basis could have terminated the

proceedings in question. However, the

High Court took the view that the question

of validity of the certificate issued by

the G.P. Secretary is of considerable

public importance and needed a resolution.

Accordingly, the High Court after

dismissing the writ petition on merits

went on to answer the aforesaid question

terming the same to be a “larger issue”.

5. As the opinion of the High Court

holding the said certificate to be invalid

has the potential of affecting a large

number of persons who were not before the

High Court a series of Special Leave

Petitions have been filed by such persons

before this Court challenging the

aforesaid part of the order of the High

Court. Leave to file Special Leave 6

Petitions has been granted and the

grievances raised have been heard.

6. The Appeal arising out of the

Special Leave Petition filed by the

aggrieved writ petitioner before the High

Court i.e. Monowara Bewa @ Manora Bewa has

also been entertained and heard along with

the above group of appeals.

7. We have heard the learned counsels

for the parties.

8. A reading of the order of the High

Court would go to show that according to

the High Court the document in question

was a means to facilitate a claim for

inclusion in the NRC by reference to a

document which is post 24th March, 1971

i.e. cut off date on the basis of which

citizenship under Section 6A of the 7 Citizenship Act, 1955 is required to be

determined. The High Court took the view

that all the other documents listed in the

'illustrative list of documents

admissible' are prior to the cut off date

and, therefore, there cannot be any

special reason for inclusion of the said

document i.e. contemporaneous G.P.

Secretary certificate in the said list,

even as a supporting document. In this

regard, the High Court took the view that

this Court in Sarbananda Sonowal Vs. Union

of India1 has held that the State of Assam

is facing “external aggression” and

“internal disturbance” on account of huge

influx of illegal migrants and keeping in

mind the seriousness of the problem the

use of the document in question to

establish citizenship for inclusion in the

updated NRC cannot commend for acceptance.

1 (2005) 5 SCC 665 8

9. The High Court also took the view

that under the provisions of the Assam

Panchayat Act, 1994 issuance of such

certificate is not contemplated and/or

authorized. Referring to the provisions

of the Indian Evidence Act, 1872 the High

Court was also of the opinion that as the

said certificate is not issued by the G.P.

Secretary on the basis of any official

records, the same is not a 'public

document' and, in fact, the said

certificate partakes the character of a

'private document' issued by the G.P.

Secretary. The evidentiary value of the

same, therefore, is open to serious doubt.

It is on the aforesaid broad basis that

the High Court thought it proper to

invalidate the certificate in question.

10. The invalidation of the 9

certificate which was an agreed document

in the matter of processing of claims for

inclusion in the updated NRC undoubtedly

has the effect of affecting a large number

of claimants who may have filed their

applications for inclusion in the NRC.

11. It may therefore be necessary to

very briefly notice the circumstances in

which the illustrative list of documents

including the certificate of the G.P.

Secretary appearing at Serial No.13 of the

said list had come into existence.

12. A set of modalities for

preparation of the NRC was formulated by

the State Government through a Cabinet

sub-committee. The sub-committee which was

initially constituted on 3rd August, 2010

had been reconstituted from time to time.

The modalities were discussed after 10

several rounds of deliberations with

various stakeholders including All Assam

Students' Union (“AASU”) and 26 Ethnic

Unions as well as All Assam Minorities

Students' Union (“AAMSU”). The list of

documents were part of the aforesaid

modalities which after being finalized by

the State Government were sent to the

Government of India on 5th July, 2013. The

approval of the Union Government of the

said modalities was communicated by a

letter dated 22nd November, 2014 of the

Union Home Secretary addressed to the

Chief Secretary of the Government of

Assam. After the aforesaid approval of the

Union Home Secretary, the State

Coordinator (NRC) informed the Registrar

General of India of the decision of the

Union Government and sought instructions

of the said Authority, i.e., R.G.I. with

regard to issuance of such certificates. 11

This was communicated by a letter dated 9th

April, 2015 of the State Coordinator. In

response to the said letter, the R.G.I. by

communication dated 5th May, 2015 approved

the format of the certificate(s) to be

issued by the G.P. Secretary/Executive

Magistrate. Thereafter, the State

Coordinator by a communication issued on

the same day i.e. 5th May, 2015 informed

all the Deputy Commissioners of the States

of the decision of the R.G.I. and the

approval of the format of the certificates

that are to be issued by a G.P. Secretary

in rural areas and Executive Magistrate in

the urban areas for married women

migrating to a new place on account of

marriage. The required protocol to be

followed in issuing such certificates was

also communicated by the said letter of

the Coordinator dated 5th May, 2015. 12

13. From the above it would appear

that the list of illustrative documents

including the G.P. Secretary certificate

were agreed to by all stakeholders in the

process of updation of the NRC and the

same also had the approval of the Union

Government as well as the State Government

pursuant to which instructions were issued

to the district level officers in the

matter of issuance of such certificate in

tune with the required protocol.

14. The exercise in question was

undertaken by the High Court to consider

an issue not strictly arising in the

proceedings before it. Resolution of the

issue was not indispensable for answering

the writ petitions under consideration of

the High Court. The issue had the

potential of affecting the large number of

citizens who were not before the High 13

Court. No notice under the provisions of

Order I rule 8 of the Code of Civil

Procedure, 1908 was also issued to enable

the persons likely to be affected to

contest the matter in a representative

capacity. Though, the order of the High

Court insofar as the issue of the validity

of the certificate is liable to be

interdicted on the above basis alone, we

are of the view that we should proceed

further in the matter and record our views

on the issue of validity of the

certificate in question to dispel all

doubts in the matter and to avoid any

further litigation on the issue.

15. The certificate issued by the G.P.

Secretary merely acknowledges the shifting

of residence of a married woman from one

village to another. The said certificate

by itself and by no means establishes any 14

claim of citizenship of the holder of the

certificate. This is made clear in the

illustrative list of documents itself by

specifying the same to be only a

supporting document. The certificate in

question only enables its holder to

establish a link between the holder and

the person from whom legacy is claimed.

It has been made clear in the several

reports of the learned State Coordinator,

NRC, Assam that a claim accompanied by

such a certificate, without details of the

legacy person, is to be discarded and in

the event information as to the legacy

person has been furnished, the certificate

in question is to be used for the limited

purpose of providing a linkage after due

enquiry and verification.

16. The certificate issued by the G.P.

Secretary, by no means, is proof of 15

citizenship. Such proof will come only if

the link between the claimant and the

legacy person (who has to be a citizen) is

established. The certificate has to be

verified at two stages. The first is the

authenticity of the certificate itself;

and the second is the authenticity of the

contents thereof. The latter process of

verification is bound to be an exhaustive

process in the course of which the source

of information of the facts and all other

details recorded in the certificate will

be ascertained after giving an opportunity

to the holder of the certificate. If the

document and its contents is to be

subjected to a thorough search and probe

we do not see why the said certificate

should have been interdicted by the High

Court, particularly, in the context of the

facts surrounding the enumeration and

inclusion of the documents mentioned in 16

the illustrative list of documents, as

noticed above. In fact, the said list of

illustrative documents was also laid

before this Court in the course of the

proceedings held from time to time and

this Court was aware of the nature and

effect of each of the documents mentioned

in the list.

17. The above apart, from a conjoint

reading of the provisions of the Assam

Panchayat Act, 1994 i.e. Sections 19(1)

(vi), 21 and 122, it would appear that

directions for issuance of such

certificate can come within the ambit of

the jurisdiction of the authorities under

the Act in which event the view taken by

the High Court and the contentions

advanced on behalf of the State that the

said document is a 'private document'

would be legally fragile.

17

18. For all the aforesaid reasons we

set aside the order of the High Court

insofar as the invalidity of the

certificate issued by the G.P. Secretary

is concerned and allow the present appeals

to the above limited extent. We make it

clear that the certificates issued by the

G.P. Secretary/Executive Magistrate will

however be acted upon only to establish a

linkage between the holder of such

certificate and the person(s) from whom

legacy is being claimed. The certificate

will be put to such limited use only if

the contents of the certificate are found

to be established on due and proper

enquiry and verification.

19. Civil Appeal arising out of

Special Leave Petition (Civil) No.12647 of

2017 will now be listed before the 18

appropriate Bench for disposal on merits

so far as the order of the High Court

holding the writ petitioner – appellant

(i.e. Monowara Bewa @ Manora Bewa) to be a

foreigner is concerned.

....................,J.

(RANJAN GOGOI)

....................,J.

(ROHINTON FALI NARIMAN)

NEW DELHI DECEMBER 5, 2017