Residential certificate is not a proof of citizenship: Calcutta High Court

 Mithun Sl. No.05 D L Ct.No.30. CRM 2717 2021 In re: An application under Section 439 of the Code of Criminal Procedure in connection with GR Case No.61 21 arising out of Hemnagar Coastal Police Station Case No.02 21 dated 05.01.2021 under Section 14 14C of the Foreigners Act 1946 In the matter of : Khadija Begam Mr.Satadru Lahiri Adv Mr.Safdarv Azam Adv Mrs. Faria Hossain Adv. Ms. Baisali Basu Adv … for the petitioner …for the State Pressing a bail of the petitioner it is submitted by the learned Advocate for the petitioner that one Biplab Dey S.I. of Police Hemnagar Costal Police Station has submitted a report on 23rd March 2021 in compliance with the order dated 17th March 2021 wherein he submitted that accused petitioner produced voter identity card and Aadhaar card before this Court for the first time to claim her citizenship of this Country. However he has produced the certified copy of the order sheets of G.R. Case No.621 wherefrom it is learnt that the said documents were actually produced before the learned Magistrate who directed the Investigating Officer to conduct enquiry and submit a report with regard to the said documents. But without submitting a report the Investigating Officer submitted charge sheet in G.R.Case No.61 of 2021 which prompted the learned Magistrate to reject the application for bail of the petitioner under Section 437 of the Code of Criminal Procedure It is frankly submitted by the learned Advocate for the petitioner that in the EPIC card the name of her husband is shown as Roshith Khan but in the F.I.R. as per the statement of the petitioner the name of her husband was recorded as Late Salam Hauladar. This discrepancy was sought to be clear from the Investigating Agency. The Investigating Agency has mentioned the discrepancy in the EPIC Card and the statement of the accused with regard to husband’s name of the petitioner Learned Advocate for the petitioner submits that this is merely a typographical error and it can be rectified at any point of time. However the petitioner is a resident of Bangalore. A rent agreement was executed between the petitioner and her landlord at Bangalore. Local Tahsildar issued a residential certificate in the name of the petitioner Therefore the learned Advocate for the petitioner has prayed for further enquiry into the matter by Investigating Officer and a report It is needless to say that residential certificate may be obtained by any resident he may be an Indian National or Foreign National if he stays at a particular place. Residential certificate is not a proof of citizenship. I have already recorded that the Advocate for the petitioner has prayed for further enquiry with regard to the name of the husband of the It is already recorded that charge sheet has been submitted in this case. The petitioner is at liberty to make such prayer before the learned Trial Court during trial of the case and in such event the learned Trial Court will cause enquiry during the trial on the basis of the evidence on record At this stage I do not find any merit in the application for Prayer for bail is thus rejected (Bibek Chaudhuri J

Summary: In the matter pertaining to citizenship, the Calcutta High Court bench comprising of Bibek Chauduri J. reaffirmed the position that such documents as the Aadhar Card, Voter ID and any sort of residential proof may not be a conclusive evidence of citizenship. In the present matter of Khadija Begum v State [CRM/2717/2021], the position of documents conferring the status of citizenship was reiterated. A report was submitted by the S.I. of Police dated 23rd March 2021 wherein it was stated that Khadija had produced two documents i.e. Aadhar Card and Voter ID, before the High Court for the first time, in order to claim her Indian citizenship. However, it was the case of the petitioner that as that as per the documents produced by the S.I. of Police, it can be seen that the documents were produced earlier before the Magistrate wherein the said Magistrate had directed the Investigating Officer to conduct an enquiry for submitting a report regarding her documents. Moreover, it was also submitted by the petitioner that without the IO submitting the said report, a chargesheet was filed in the case after which the Magistrate rejected her bail application under sec. 437 of CrPC. Arguing that the petitioner was a resident of Bangalore, a rent agreement was relied upon by her which was executed between her and the landlord. A Local Tahsildar had issued a residential certificate in her name. The bench ventured into the specifications in The Citizenship Act, 1955 which provides for six different methods to acquire Indian citizenship: by birth (section 3), by descent (section 4), by registration (section 5), by naturalisation (section 6), persons covered by the Assam Accord (section 6A), and by incorporation of territory (section 7). Under section 5(1)(c), a person married to a citizen of India and ordinarily residing in India for at least seven years has the “option” to apply to register as an Indian citizen It is pertinent to note that in National Human Rights Commission vs State of Arunachal Pradesh 1996 SCC (1) 742, the Supreme Court clarified that a person can be registered as a citizen of India only if the requirements of section 5 of the Citizenship Act are satisfied. Further, the Apex Court, in Sarbananda Sonowal vs Union of India WP(civil) 131 of 2000, laid down the principle that the burden of proof is on the claimant, for they would possess the documents required to show they are citizens, within the meaning of the Constitution and under the Act. In light of citizenship, it also vital to shine light on the Article 326 of the Constitution which gives every citizen the right to vote in Lok Sabha and State Assembly elections, which is done through the voter ID. However, a voter ID is issued merely based on self-declaration by the applicant via Form 6 under Rules 13(1) and 26 of the Registration of Electors Rules, 1960 A recent judgment of the Gauhati High Court in Munindra Biswas v. Union of India and Ors. [WP(C) 7426/2019], while reaffirming its previous ruling in Md. Babul Islam v. the State of Assam [WP(C) No. 3547 of 2016] held that the electoral photo identity card is not proof of citizenship. Even so the conclusive proof of citizenship is also not furnished by the aadhar card and this was propounded in the dissenting opinion of Chandrachud J. in the matter of Justice KS Puttaswamy (Retd.) and Anr. vs Union of India and Ors WP(CIVIL) NO 494 OF 2012.