Once declared citizen, a person cannot be declared foreigner by FT as per Res Judicata: Gauhati HC

Order comes as a relief to people who had been dragged to FTs multiple times

Gauhati HC

In a landmark judgment the Gauhati High Court has ruled that the principle of Res Judicata applies to orders passed by Foreigners’ Tribunals (FT). Simply put, this means that if an FT finds a person to be an Indian citizen, the same person cannot be tried again or declared foreigner.

Readers would recall that Citizens for Justice and Peace (CJP) had brought to light the curious case of one Shamshul Haq who was forced to prove his citizenship before an FT four times! When the CJP team had met him in Assam in July 2018, a hapless Had who was 65-years-old at that time, had told us, “I was born here. My father was born here. My mother is a Hindu!” Unable to understand why this strange fate befell him, he asked, “How can I be a foreigner?”

The Gauhati High Court judgment is a ray of hope for Haq and many others like him.

What is Res Judicata?

Res Judicata is a Latin term and a legal maxim that simply translated means “the matter has been judged.”

Section 11 of the Code of Civil Procedure explains the principle of Res Judicata as, “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

This means, that once a final decision has been given by a competent court on a matter between the same parties, the same shall be binding and no court will have a power to try any fresh litigation which has been already settled in the former litigation between the parties.

Law portal Legal Services India further says, “The doctrine of Res Judicata is based on three maxims:

  1. Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause).

  2. Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to litigation).

  3. Re judicata pro veritate occipitur (a judicial decision must be accepted as correct).

In other words, if a person has been tried and judged once, there is no merit in trying and judging the same person for the same cause again.

Brief background of the case

The Gauhati HC was hearing a batch of 11 petitions of persons who were appealing against FT orders that had declared them foreigners, the common theme running through all cases being the applicability of the principle of Res Judicata.

The Petitioners contended, based on the decision in Abdul Kuddus Vs. Union of India, that the subsequent proceedings before the FTs challenged in these petitions are barred by Res Judicata. Whereas the Special Counsel for the FTs submitted the law laid down by this Court in Amina Khatoon Vs. Union of India, in which it was held that Res Judicata is not applicable in the proceeding before the Foreigners Tribunal, will continue to hold the field as the said decision has not been overruled by the Hon’ble Supreme Court so far. Neither has it been challenged before the Hon’ble Supreme Court so far.

The Gauhati HC Bench of Justice Kotiswar Singh and Justice Nani Tagia relied upon the Supreme Court’s Judgment in the case of Abdul Kuddus v/s. Union of India (2019) and held that the Foreigners’ Tribunal must follow the principle of Res Judicata while considering the citizenship of a person.

Two Judgments in conflict

Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 [Abdul Kuddus for short]

The Petitioners heavily relied upon the decision made by Supreme Court in the case of Abdul Kuddus and contended that the subsequent proceedings before the Foreigners Tribunals challenged in these petitions are barred by res judicata.

It was the case of the Appellants that a person declared a foreigner by a Foreigners Tribunal and whose name is also included in the National Register of Citizens (NRC) should be allowed to file an appeal against an adverse order by the NRC authority under Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, hereinafter referred as the “2003 Rules” denying registration.

The Supreme Court held that the principle of Res Judicata is applicable, and held that:

“In view of the aforesaid findings, it has to be held that Para 8 of the Schedule to the 2003 Rules which gives a right to appeal before the Tribunal under the 1964 Order would apply only if and, in those cases, where the Tribunal constituted under the 1964 Order has not already adjudicated upon and decided the issue as to whether the person is an Indian National or a foreigner. In other words, where the issue and question of nationality has already been determined under the 1964 Order, an appeal would not be maintainable under Para 8 of the Schedule to the 2003 Rules. The determination would be final and binding on the Registering Authority under the Schedule and the Local Registrar. Para 8 does not envisage and provide for a second round of litigation before the same authority i.e. the Foreigners Tribunal constituted under the 1964 Order on and after preparation of the final list. Provisions of Para 8 of the Schedule to the 2003 Rules will apply when there has not been an earlier adjudication and decision by the Foreigners Tribunal.”

Amina Khatoon Vs. Union of India, (2018) 4 Gau LR 643 [Amina Khatoon for short]

The case was about whether an opinion rendered by a Foreign Tribunal in respect of the same procedee would be binding on another Foreign Tribunal or the same Foreigners Tribunal following further or fresh reference made by the State.

The Division Bench of this Court in Amina Khatoon, held that an opinion rendered by a Foreigners Tribunal is not a judgment. Foreigners Tribunal is only to render an opinion on the reference made to it but the ultimate decision rests with the Central Government under section 3 of the Foreigners Act. If the Central Government or the delegated authority, which in the case of Assam is the Superintendent of Police (Border), finds that the negative opinion rendered was contrary to the materials on record or there was no proper appreciation of the materials on record or if new materials emerge against a suspect or if the opinion of a Foreigners Tribunal is palpably wrong, the Central Government or the Superintendent of Police (Border) cannot be debarred from seeking a fresh opinion from a Foreigners Tribunal.

The Division Bench then took the view that to hold that principle of Res Judicata would be applicable to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order would be self-defeating and against the overarching public policy, i.e., to ensure national security and to protect the integrity of the nation.

Gauhati High Court’s observation

Although the decision made in Amina Khatoon was not brought to the notice of the Supreme Court; the Bench held that the decision made by the Supreme Court will prevail over any decision of the High Court on the same issue which states that the principle of Res Judicata will be applicable to the proceedings before the Tribunal.

The Bench held that, “In our view the ratio decidendi of Abdul Kuddus is that principle of res judicata will be applicable to the proceedings before the Foreigners Tribunals and as such, the contrary decision of this Court in Amina Khatoon will no more be good law and such view will be denuded of its precedential value will be deemed to be oversaid by Abdul Kuddus and we will be bound by the decision in Abdul Kuddus and not by Amina Khatoon on issue.”

The Bench further held that, “Nonetheless, it has to be also kept in mind that after the decision was rendered by this Court on 19.04.2018 in Amina Khatoon, which specifically held that principle of res judicata will not be applicable in the proceedings before the Foreigners Tribunal, if any proceedee had not taken this plea before the Tribunal in any proceedings after 19.04.2018, the proceedee cannot be faulted for not raising the plea before the Tribunal as he could not have raised such a plea because of Amina Khatoon. Thus, he will be entitled to raise this plea even if it is for the first time before this Court.” It added, “Accordingly, all these petitions will be considered and disposed of in the light of the law laid down in Abdul Kuddus and not on the basis of the decision rendered in Amina Khatoon as it is no more a good law.” Meaning, once a foreigners’ tribunal has declared someone to be an Indian, the same person can’t be declared not to be an Indian if proceeded again.

The Court in each plea, has determined as to whether the present Petitioner is the same person who was proceeded before the Foreigner Tribunal, since the issues before the both – the Tribunal and Court, are the same ie., whether the proceedees are foreigners or not.

The Court held that if a person had been declared as Indian citizen earlier and the same person was subsequently declared to be a foreigner in another proceeding, according to res judicata principle, he shall be deemed to be an Indian citizen, as same issue cannot be brought up twice before any Tribunal / Court.

Gauhati High Court held that he/she is entitled to raise this plea before the High Court even if it is for the first time. Accordingly, all the Petitions were allowed in the light of law laid down in Abdul Kuddus.

Not the first instance of upholding Res Judicata

In January this year too, the Gauhati High Court had held, in the case of one Moinul Haque, that the principle of Res Judicata applies in the case. Haque had been declared Indian in the first FT proceeding against him and subsequently declared foreigner ex parte in the second proceeding. When he moved Gauhati HC, the Bench of Justices N Kotiswar Singh and Malasri Nandi deemed that unless in subsequent proceeding it is concluded that the person declared Indian in previous proceeding is not the same person as in current proceeding, the earlier declaration cannot be interfered with.

The bench thus remanded the matter to the Tribunal to consider primarily whether the person in both proceedings is the same person and if that is the case, then the decision of the first proceeding shall sustain; which is that the petitioner is an Indian citizen.

In yet another case, the Gauhati High court paved the way for releasing 55-year-old Hasina Bhanu, who was languishing behind bars in a detention centre in Tezpur. Bhanu hailed from Shyampur Village (No-3), which falls under the jurisdiction of Shyampur police station in Darrang district of Assam. After she was first served notice by Mangaldoi’s FT-4, she had submitted as many as 16 documents including 1966 records of her father’s and grandfather’s names in the voters’ list. Based on this plethora of evidence, the FT in August 2016, declared that she was not a “foreigner/illegal migrant of any stream.”

However, the same FT sent her another notice based on a referral from the Assam Border Police who suspected her of being a foreigner. In 2017. Bhanu again submitted her documents, but according to her lawyer Zakir Hussain, “This time the tribunal said her linkage documents were not okay.” Therefore, in March 2021, the FT declared her “foreigner”. Bhanu was sent to the detention centre in Tezpur.

When the FT order was challenged before the Gauhati High Court, the court was flummoxed at how the same person could be first found to be Indian and subsequently declared foreigner. In its order, the HC said, “Considering the nature of the case, we are of the view that the current petition can be disposed of at this stage without calling for the records.”

In both cases, the Gauhati HC cited Abdul Kuddus Vs. Union of India while ruling in favour of the proceedees.


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