The Calcutta High Court has held that the burden of proof to establish Indian citizenship lies squarely on the detainee when Indian authorities allege that the detained person is a foreign national, as mandated by Section 16 of the Immigration and Foreigners Act, 2025. The Court categorically held that a Voter Identity Card is merely evidence of enrolment in the electoral roll and not proof of citizenship, particularly where the detainee’s name had already been deleted from the electoral roll in the SIR, 2026 process. AADHAAR, PAN, and bank passbooks were similarly held to be insufficient.
The Court found that the writ petitioner and the detainee failed to discharge this burden of proof under the Immigration and Foreigners Act, 2025, as no document conclusively established the detainee’s Indian citizenship, neither by birth, nor by descent, nor by registration. The Court further held that the decision taken by the authorities did not warrant interference, as the detention was carried out in accordance with the MHA Circular dated May 2, 2025, which was not under challenge, and there was no allegation that its mandate was not followed.
The Division Bench comprising Justice Debangsu Basak and Justice Ajay Kumar Gupta noted that the MHA Circular dated May 2, 2025, was not under challenge in the present writ petition, and there was no allegation that the mandate of the Circular was not followed in respect of the detention. The Court observed that when Indian authorities allege that a detained person is a foreign national, the onus is on the detainee to establish his or her nationality, as mandated by Section 16 of the Immigration and Foreigners Act, 2025.
The Court noted that the detainee had acknowledged being a Bangladeshi national, but such acknowledgement was made while the detainee was in the detention centre. However, the Court declined to enter into the debate on whether an admission of civil liability made while in detention would carry the same consequences as an admission made to police while in custody in a criminal proceeding, and instead proceeded to examine the documents and materials put forward by the detainee and the writ petitioner. The Court held that even if the principle that an admission made in police custody should be discarded were applied, the onus of establishing citizenship nonetheless remains with the detainee.
On the question of citizenship, the Court observed that Articles 5 to 11 of the Constitution of India regulate citizenship at the commencement of the Constitution, while the Citizenship Act, 1955 governs the acquisition and determination of Indian citizenship, Section 3 provides for citizenship by birth, Section 4 for citizenship by descent, and Section 5 for citizenship by registration. The Court noted that neither the writ petitioner nor the detainee, despite repeated opportunities, addressed the Court on the core issue of which provision of the Citizenship Act, 1955 the detainee’s citizenship was founded upon, with the petitioner’s counsel responding with either stoic silence or thunderous utterances completely removed from the issue.
The Court found that the petition did not disclose the birth certificate of the detainee, and adequate material to establish place or date of birth was absent, thereby failing to establish citizenship by birth. On citizenship by descent, the Court found “cavernous disconnections”, the name of the father of the detainee varied from document to document, the maternal aunty and the detainee could not be connected by the documents on record, and the Indian citizenship of the persons through whom the detainee sought to claim descent was itself not established. Neither the writ petitioner nor the detainee claimed citizenship under Section 5 of the Act of 1955.
The Court also noted a critical inconsistency in the petitioner’s case, in the complaint to the police, the writ petitioner described himself as the cousin brother of the detainee, whereas in the writ petition he claimed to be the uncle of the detainee, describing the detainee as his nephew. The writ petitioner’s affidavit stated his age as 38 years while the detainee claimed to be 46 years of age, making the claim that the petitioner brought up the detainee as his uncle inherently implausible.
The Court recorded that on multiple hearing dates, it had inquired about the whereabouts of the parents of the detainee, even offering to direct DNA testing of the mortal remains of the parents to establish that they were Indian citizens. The detainee, when permitted to speak over phone (facilitated by the State), claimed his parents expired in India but could not identify the places where they were laid to rest. The petitioner, despite repeated requests, strongly refused to divulge such information.
On the documents relied upon, the Court held that a Voter Identity Card is not conclusive proof of Indian citizenship, it is merely evidence of enrolment in the electoral roll, and the detainee’s name had already been deleted from the electoral roll in the SIR, 2026 process. An AADHAAR Card, a PAN Card, and a bank account, by themselves, are also not proof of Indian citizenship. Record of Rights of the great-grandfather and grandfather of the detainee, as well as documents relating to the paternal aunty including a passport, did not conclusively establish the Indian citizenship of the detainee.
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Briefly, the petitioner, Suman Molla, approached the Calcutta High Court under its constitutional writ jurisdiction, claiming to be the uncle of a 46-year-old detainee who was taken into custody on June 18, 2026, pursuant to a detention order issued under the Ministry of Home Affairs Circular dated May 2, 2025. The petitioner alleged that his nephew was an Indian citizen wrongfully detained and that the detainee had been classified as “under adjudication” in the Special Intensive Review (SIR), 2026 process, with his name struck off the voters’ list. The petitioner contended that an appeal against the SIR decision was pending and that the detainee had not been granted an opportunity of hearing by the Tribunal, arguing that citizenship could not be decided without disposal of the appeal.
The State, on the other hand, submitted a report along with a video recording in which the detainee admitted himself to be a foreign national, specifically, a Bangladeshi national. The State contended that the detention was carried out in accordance with the MHA Circular dated May 2, 2025, which provides a 60-day period for a detainee to establish Indian citizenship, and that the detainee had failed to submit any document to establish his citizenship as of the date of hearing. The Union of India supported the State’s position, confirming that all States in India are required to follow the said Circular.
The detention order dated June 18, 2026, recorded that inquiry, interrogation, and verification had been conducted and that the authorities were satisfied that the detainee was a Bangladeshi national, and accordingly exercised powers under the Immigration and Foreigners Act, 2025 read with paragraphs 8 and 12 of the Immigration and Foreigners Order, 2025. Page 3 The MHA Circular dated May 2, 2025 delineates the procedure for dealing with illegally staying Bangladeshi/Rohingya (Myanmar) nationals apprehended in the country.
