In a significant ruling on the limits of the jurisdiction exercised by Foreigners Tribunals in Assam, the Gauhati High Court has held that children or family members of a person declared a foreigner cannot automatically be branded foreigners in the absence of a separate and specific reference against them.
A Division Bench of Justice Sanjay Kumar Medhi and Justice Shamima Jahan, while partly upholding a Foreigners Tribunal order against a woman from Cachar district, set aside the declaration made against her sons and daughters, reiterating that the law does not permit “derivative declarations” of foreigner status merely on the basis of kinship.
The judgment, delivered on April 30, 2026 in Maya Das v. Union of India & Ors., draws an important procedural boundary in Foreigners Tribunal proceedings in Assam, where entire families are often swept into the consequences of a declaration against one individual.
Tribunal had declared entire family as foreigners
The case arose from an order dated May 24, 2019 passed by the Foreigners Tribunal No. 4, Silchar, in FT Case No. 105/2015. The reference had been initiated by the Superintendent of Police (Border), Cachar, against petitioner Maya Das alone. However, while answering the reference, the Tribunal not only declared Maya Das to be a foreigner who had allegedly entered India after March 25, 1971, but also declared her sons, Diju Das and Pintu Das, and daughters, Mukta Das, Sukta Das and Bijoya Das, to be foreigners as well.
Before the High Court, the petitioner challenged the Tribunal’s findings, contending that she had produced sufficient documentary and oral evidence to establish her citizenship and linkage to her projected father, Nibaran Chandra Das.
The documents relied upon included voters’ lists, NRC data, birth certificates, voter identity records, a marriage certificate and a certificate issued by the Gaon Panchayat Secretary.
Court reiterates burden of proof under Section 9
The High Court, however, declined to interfere with the declaration against Maya Das herself. Reaffirming the settled position under Section 9 of the Foreigners Act, 1946, the Bench observed that the burden of proving citizenship lies entirely upon the proceedee and “never shifts.”
“With regard to the aspect of burden of proof as laid down in Section 9 of the Act of 1946, the law is well settled that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts.” (Para 18)
The Court extensively discussed the statutory framework governing Foreigners Tribunal proceedings and reiterated that proceedings under the Foreigners Act operate differently from ordinary civil or criminal adjudication. Since the facts concerning nationality and ancestry lie “especially within the knowledge” of the proceedee, the legal burden rests squarely on the individual facing the reference.
In doing so, the Bench relied upon earlier Supreme Court precedents including Fateh Mohd. v. Delhi Administration and Ghaus Mohammad v. Union of India, both of which had affirmed the constitutionality and operation of Section 9 of the Foreigners Act.
Documentary linkage found inadequate
The Court scrutinised the evidentiary basis relied upon by the petitioner and concluded that while legacy documents relating to her projected father existed, there was no legally proved and credible linkage connecting the petitioner to those documents.
The Bench noted that the voters’ lists and NRC documents contained the name of the projected father, but the documents containing the petitioner’s own name failed to establish a verifiable familial connection with him.
“In the instant case, it does not appear that there is any relevant document which have been proved in accordance with law to show a connection of the petitioner with Nibaran Ch. Das, her projected father, whose name appears in the Voters List of 1965. As noted above, the petitioner had also produced the NRC and land document pertaining to her projected father. However, the documents containing the name of the petitioner do no show a link with her projected father.” (Para 22)
Particular emphasis was placed on the limited evidentiary value of Gaon Panchayat certificates. Referring to the Supreme Court’s decision in Rupajan Begum v. Union of India, the Court reiterated that such certificates are not proof of citizenship by themselves and can, at best, serve as supporting linkage documents after proper verification.
The Bench further observed that the school certificate produced by the petitioner had not been proved in accordance with law and that oral testimony unsupported by contemporaneous documentary records could not discharge the statutory burden under Section 9.
The Court ultimately held:
“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.” (Para 23)
High court draws a clear line against automatic family-wide declarations
Yet, while refusing relief to the petitioner herself, the High Court decisively intervened on the question of the children’s declaration.
The Bench held that the Foreigners Tribunal had exceeded its jurisdiction by declaring the petitioner’s sons and daughters’ foreigners despite there being no independent reference against them.
“There is however another issue involved in this case. Vide the impugned order, while the Reference is answered against the petitioner, it has been held that the sons and daughters of the petitioner, namely, Diju Das, Pintu Das, Mukta Das, Sukta Das and Bijoya Das are also foreigners.” (Para 25)
Calling the legal position “settled,” the Court relied upon its earlier judgment in Sudhir Kr. Roy v. Union of India to reiterate that a Foreigners Tribunal can only adjudicate upon the individual against whom a formal reference has been made.
The Court categorically 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 and in this connection, reference may be made to the judgment dated 04.01.2019 passed in the case of Sudhir Kr. Roy vs. Union of India in WP(C)/6790/2018 wherein 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.” (Para 25)
Importantly, the Bench added that while authorities remain free to initiate separate proceedings against family members of a declared foreigner, such declarations cannot automatically flow from the status of a parent. This aspect of the ruling is likely to carry wider implications in Assam’s foreigners’ determination regime, where references and declarations have frequently affected multiple members of a family in cascading fashion.
Limits of writ jurisdiction reaffirmed
The judgment also contains an elaborate discussion on the limited scope of judicial review under Article 226 in challenges to Foreigners Tribunal opinions. The Court reiterated that in exercise of certiorari jurisdiction, the High Court does not function as an appellate authority re-appreciating evidence. Rather, interference is warranted only in cases involving procedural illegality, perversity, jurisdictional error or violation of natural justice.
Relying upon the Supreme Court’s ruling in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, the Bench emphasised that a writ court “does not review or reweigh the evidence” upon which findings of fact have been reached by the Tribunal.
The Court therefore declined to upset the Tribunal’s findings against Maya Das, holding that no infirmity in the decision-making process had been demonstrated.
Liberty reserved under Citizenship Amendment Act
In the concluding portion of the judgment, the Court clarified that the dismissal of the writ petition against the petitioner herself would not prejudice her right to seek relief under the Citizenship Amendment Act, if otherwise available in law.
While the judgment ultimately leaves intact the declaration against the petitioner, its intervention on behalf of her children marks an important reaffirmation of procedural safeguards in Foreigners Tribunal jurisprudence. By insisting upon individualized references and individualized adjudication, the Court has underscored that citizenship determinations cannot be expanded merely through familial association or inheritance of status.
The complete judgment may be read below:
Earlier concerns raised by CJP over family separation in Assam’s citizenship regime
The Gauhati High Court’s insistence that children cannot automatically be declared foreigners merely because a parent has been so declared also echoes long-standing concerns raised before the Supreme Court regarding family separation and the arbitrary exclusion of children from citizenship processes in Assam.
In 2019, Citizens for Justice and Peace had moved an Intervention Application before the Supreme Court in the ongoing NRC proceedings in Assam Public Works v. Union of India, specifically highlighting the plight of children excluded from the National Register of Citizens despite their parents being included.
Filed through Senior Advocate Aparna Bhat, the application warned the apex court that the NRC process had produced deeply disturbing situations where children were rendered vulnerable to statelessness, detention and family separation even while their parents or close relatives had been recognised as Indian citizens.
CJP’s intervention had argued that such exclusions violated not only constitutional guarantees under Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution, but also India’s obligations under the United Nations Convention on the Rights of the Child. The application stressed that arbitrary exclusion of children struck at the heart of the principle of family unity and exposed minors to immense psychological, social and economic trauma.
To demonstrate the scale of the crisis, CJP had placed before the Supreme Court a list of 61 children who had been excluded from the NRC despite their parents being included. Detailed case studies were also furnished. Among them was the case of Hasmat Ali, whose three minor children were excluded from the NRC even though both parents had made it to the final list. The application described how the family was forced into an exhausting cycle of hearings, document collection, travel to distant tribunals and mounting debt — all driven by the fear that the children could ultimately face detention or separation from their parents.
The intervention also drew attention to the broader humanitarian consequences of the NRC process, submitting that numerous deaths had occurred in connection with citizenship-related anxieties and detention, including recorded deaths inside Assam’s detention centres.
Importantly, while the Supreme Court did not immediately decide the intervention application finally, it took cognisance of the concerns raised and, during hearings on January 6, 2020, directed the Assam government to ensure that children whose parents were included in the NRC would neither be sent to detention centres nor separated from their families until the issue was fully considered.
That intervention assumed significance because it foregrounded a principle that now finds reaffirmation in the present Gauhati High Court ruling: citizenship determinations cannot casually fracture family structures or operate mechanically against children merely because of the status of a parent.
The present judgment, while arising in the context of Foreigners Tribunal proceedings rather than NRC exclusions, similarly underscores that the law requires individualized scrutiny and individualized proceedings. By holding that no person can be declared a foreigner without a specific reference against them, the High Court has effectively reinforced procedural safeguards against sweeping, family-wide declarations that risk undermining the rights and security of children and other dependants.
A detailed report may be read here.
Related:
CJP Assam: A journey without parallel, evolving & expanding rights jurisprudence