Citizenship Amendment Act and National Register of Citizens: How Burdensome is the ‘Burden of Proof’?

Kumar Magalam & Amrashaa Singh

National Law University Odisha

The  amendment of 2019 to the  Citizenship Act, 1955 relaxes the conditions for granting citizenship by way of naturalization to people who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan. The CAA, when read with the National Register of Citizens (NRC), has become a tool to invalidate the citizenship of the Muslim population of India. The imposition of nationwide NRC makes it possible for the government to exclude all the people whose names are not in the list released by central government appointed authority. These people then would have to approach the Foreigner’s tribunals as illegal migrants. 

The fundamental issue concerning the Citizenship Act is how citizenship is to be proved by alleged illegal migrants. Under the usual rules of evidence, the burden of proving a fact rests with the person who asserts that fact. So ordinarily, if the government prosecuted someone and asserted that he was not an Indian citizen but a foreigner, the burden ought to have been on the government to prove that the person was not an Indian citizen.  Hence, if the government asserts that a person is an illegal migrant then the burden should be on the government to prove that fact. However as a result of laws enacted in  1939 (Section 4 of Registration of Foreigners Act) and 1946 (Section 9 of the Foreigner Act) ordinary rule of evidence is reversed in citizenship cases. Additionally, in the Foreign (Tribunals) Order 1964 the burden was placed on foreigners to prove that they are citizens of India, which is in contrast with the principles of customary international law.  As per international law, if the State claims that a person is an illegal migrant, then the burden should be on the State to prove that fact and not vice-versa.  

Ordinarily, the burden of proving a fact lies with the claimant. In 1983, the “Illegal Migrants (Determination by Tribunals) Act (IMDT Act)” came into force. The Act attempted to place  the burden on the government to prove that an alleged illegal migrant is not a citizen of India.   Notably, the Supreme Court of India struck down IMDT Act  in the case of Sarbananda Sonowal v. Union of India and held that the burden should be on the person to prove that he is not an illegal migrant.  

In order to circumvent the judgement of Supreme Court in Sarabananda Sonowal the central government came up with  “Foreigners (Tribunals for Assam) Order 2006”. The Order of 2006 was made applicable to Assam. This order prescribed a method of esablsihing a “prima facie fact” before burden of proof shifted to alleged illegal migrant. Supreme Court in Sarbananda Sonowal v. Union of India (Sonowal II) struck down the order of 2006 stating “that the 2006 order placed the entire burden of proof on the tribunal which was impermissible.” Judgement by Supreme Court in Sonowal II shifted the burden of proof on alleged illegal migrants again in the state of Assam.  Therefore, even the Apex Court has been complicit in entrenching the discriminatory process of proving citizenship by imposing a reverse burden of proof on the accused. 

In contrast to the Supreme Court’s decision, Article 14 of the International Covenant on Civil and Political Rights, which was signed and ratified by India, provides for the presumption of innocence for those charged with a criminal offence. In such situations, it is necessary that the burden of proof should be on the one who asserts it. The assumption of the fact that a person is an illegal migrant simply makes a person stateless. Furthermore, the UN  experts have also noted that in the process of determining an individual’s nationality, the burden of proof should lie with the State and not on the individual. 

In the case of Anudo Ochieng Anudo v. Republic of Tanzania, before the African Court of Human and Peoples Rights, a person accused of forging his citizenship documents was deported without a trial. The Court held that since the state is contesting the nationality of the accused based on the validity the accused person’s  documents, the burden of proof was on the State to prove that he is not a legitimate citizen of the country.  

Similarly, in the case of Penessis v Tanzania  on similar issues, the African Court of Human and People’s Rights stated that: 

“[T]he burden of proof lies with the alleging party and shifts to the other party only when discharged. Having said that, the Court is of the view that this principle is not static and may be subject to exceptions especially in circumstances where the alleging party is not in a position to access or produce the required proof; or where the evidence is manifestly in the custody of the other party or the latter is entrusted with the means and prerogatives to discharge the burden of proof or counter the alleging party. (para 92)” 

Comparing the judgment of the African Court and the Guwahati High Court, it can be observed that while the Tanzanian authorities have placed only the ‘initial burden’ on the accused, the Guwahati High Court in its recent judgment and the Supreme Court have turned it into an ‘absolute burden’ because it is difficult to prove that the person is an illegal migrant. Furthermore, in countries like Tanzania and India where there is limited access to documents for the marginalized and vulnerable, it is pertinent to balance the interests of the citizens and the Government. Currently, 1.9 million people have been excluded from the Assam NRC. A majority of them come from economically and socially weak backgrounds which makes it all the more difficult for them to prove their illegal citizenship. 

Conclusion 

 The deviation from the normal standards is also a compromise on the fair trial standards and violates the fair trial principles. It is also noteworthy that whenever there are serious crimes involved, the legislature enacts the reverse onus clauses. The Unlawful Activities (Prevention) Act and the Prevention of Money Laundering Act are a few of the many examples where the Parliament chose to insert reverse onus clauses.  

In India, access to justice is a privilege for many. It has been noted that the majority of the people excluded by the NRC process in Assam are Below Poverty Line (BPL) and illiterate. Under such circumstances, the only recourse available to the peoples accused of being illegal migrants is to approach the Foreigner's Tribunal. Keeping in mind their financial and social conditions, it is very difficult for them to discharge the burden of proof imposed on them, which consequently renders them stateless. 

Kumar Magalam is a student at National Law University Odisha.  Amrashaa Singh is a student at National Law University Odisha.  

Suggested citation: Kumar Magalam and Amrashaa Singh, ‘Citizenship Amendment Act and National Register of Citizens: How burdensome is the ‘burden of proof’? ’ IACL-IADC Blog (23 June 2020)