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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.20858 OF 2017

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.13256 OF 2017]

RUPAJAN BEGUM        ...APPELLANT(S) VERSUS

UNION OF INDIA & ORS.   ...RESPONDENT(S)

WITH CIVIL APPEAL NO. 20862 OF 2017

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.13259 OF 2017]

CIVIL APPEAL NO. 20859 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION

(CIVIL) NO.13260 OF 2017] CIVIL APPEAL NO. 20861 OF 2017

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.13258 OF 2017]

CIVIL APPEAL NO.20860 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION

(CIVIL) NO.12647 OF 2017] CIVIL APPEAL NO.20863 OF 2017

[ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO.13257 OF 2017]

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CIVIL APPEAL NO.20864 OF 2017 [ARISING OUT OF SPECIAL LEAVE PETITION

(CIVIL) NO.28935 OF 2017] SPECIAL LEAVE PETITION (CIVIL) NO.16441 OF

2017

J U D G M E N T

RANJAN GOGOI, J.  

SPECIAL LEAVE PETITION (CIVIL) NO.16441 OF 2017

1. List  the  Special  Leave  Petition (Civil) No.16441 of 2017 separately.

SPECIAL  LEAVE  PETITION  (CIVIL) NOS.13256/2017,  13259/2017,  13260/2017, 13258/2017,  12647/2017,  13257/2017  AND 28935/2017

2. Leave  granted  in  Special  Leave Petition  (Civil)  Nos.13256/2017, 13259/2017,  13260/2017,  13258/2017, 12647/2017, 13257/2017 and 28935/2017.

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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.)]

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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

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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

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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

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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 India  1 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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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.

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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

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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