Burden To Prove Indian Citizenship Lies On Detainee, Not State: Calcutta HC [Read Judgment]

Calcutta: The Calcutta High Court has dismissed a writ petition seeking release of a detainee alleged to be a Bangladeshi national, holding that the onus to establish Indian citizenship lay upon the detainee, and that neither he nor the petitioner had been able to discharge that burden.

A Division Bench of Justices Debangsu Basak and Ajay Kumar Gupta was hearing a habeas corpus petition filed by a man claiming to be the uncle of the detainee, alleging that his nephew was an Indian citizen who had been wrongfully detained.

The detainee had been taken into detention on 18th June 2026 under the Ministry of Home Affairs Circular dated 2nd May 2025, which lays down the procedure for deportation of illegally staying Bangladeshi and Rohingya (Myanmar) nationals. The detention order recorded that inquiry, interrogation and verification had revealed the detainee to be a Bangladeshi national, and proceeded under the Immigration and Foreigners Act, 2025 read with paragraphs 8 and 12 of the Immigration and Foreigners Order, 2025.

The petitioner's counsel submitted that in the Special Intensive Review (SIR), 2026, the detainee had initially been classified as 'under adjudication', that his name had been struck off the electoral roll, and that the appeal against such deletion was still pending. It was argued that without disposal of the appeal, the detainee's citizenship could not be decided, and that he had been denied an opportunity of hearing before the Tribunal under the SIR process. Reliance was placed on the Supreme Court's decision in Sabitri Dey @ Swasthi Dey & Ors. v. Union of India & Ors. to contend that the detainee ought to have been heard before detention and any eventual deportation.

The State placed before the Court a video recording in which the detainee himself admitted to being a foreign national, and submitted that under the Circular dated 2nd May 2025, a detainee is given sixty days to establish Indian citizenship, which the detainee had failed to do.

The Court noted that the Circular dated 2nd May 2025 was not under challenge in the petition, and that there was no allegation that the detention had been carried out otherwise than in terms of the Circular.

Referring to Sabitri Dey @ Swasthi Dey (supra), the Bench observed that the burden of proving that a person is not a foreigner rests upon the proceedee, this being premised on facts relating to birth, parentage, age, residence and nationality lying within that person's special knowledge, while clarifying that this does not relieve the adjudicating authority of its obligation to conduct a lawful inquiry.

“When Indian authorities alleged that, a person detained is a foreign national, the onus is on the detainee to establish his or her nationality.”

Examining the documents relied upon, the Court held that a Voter Identity Card is only evidence of enrolment in the electoral roll and not conclusive proof of citizenship, more so as the detainee's name had already been deleted from the roll in the SIR process. Similarly, it held that an Aadhaar card, a PAN card, or a bank passbook, individually or together, do not conclusively establish Indian citizenship. Records of Rights pertaining to the detainee's great-grandfather and grandfather, and documents relating to a paternal aunt, were also found insufficient to establish citizenship by descent.

The Court noted significant inconsistencies in the petitioner's case, including a contradiction between the police complaint describing him as the detainee's 'cousin brother' and the writ petition describing him as the detainee's 'uncle', as well as an implausible age gap of only eight years between the two, undermining the claim that the petitioner had raised the detainee as his ward after the death of the detainee's father in 1980.

The Bench also recorded that despite repeated queries across three hearings, neither the petitioner nor the detainee could disclose the whereabouts of the detainee's deceased parents or the place of their last rites, despite the petitioner claiming close knowledge of the family. Drawing an adverse inference from this refusal, the Court held that the claim of the detainee's parents having been Indian citizens stood unproved.

“Since, the detainee and the writ petitioner refuse to identify the places where the mortal remains of the parents of the detainee are lying, we draw an adverse inference as against the detainee with regard to his parents being Indian citizens.”

The Court further observed that neither the writ petitioner nor the detainee had addressed the specific statutory provision of the Citizenship Act, 1955, under which citizenship was claimed, despite being repeatedly asked to do so, and that citizenship by birth, descent or registration under Sections 3, 4 and 5 of the Act had not been established on the material placed on record.

Holding that the writ petitioner had not approached the Court with clean hands and that both the petitioner and the detainee had failed to discharge the burden of proof mandated under the Immigration and Foreigners Act, 2025, the Court declined to interfere with the decision of the authorities.

The writ petition was accordingly dismissed, without any order as to costs.

Appearances:

For the Petitioner: Mr. Mokaram Hossain, Advocate; Mr. Razzak Hossain, Advocate; Mr. Karnab Biswas, Advocate

For the State: Mr. Dibasish Basu, AGP; Ms. Sneha Dutta, Advocate; Mr. Purnendu Das, Advocate

For the Union of India: Mr. Souvik Nandy, Senior Advocate; Mr. Arijit Majumder, Advocate; Ms. Shreyashi Sarkar, Advocate

Case Title: Suman Molla v. The State of West Bengal and Ors., WPA(H)/58/2026

[Read Judgment]