Abdul Kuddus v. Union of India, C.A. 5012/2019
Read the judgement here
Date of the decision: 17.05.2019
Court: The Supreme Court
Judges: Chief Justice Ranjan Gogoi, Justice Deepak Gupta, and Justice Sanjiv Khanna (authoring)
Summary: The Supreme Court clarified the authority of the Foreigners’ Tribunals, holding that the Tribunals’ orders were quasi-judicial and not merely administrative orders. It also held that the principle of res judicata applied to these orders. Therefore, the orders would not be appealable before the Tribunal. In effect, appeals would lie only before the appellate courts i.e., the High Court or the Supreme Court through the exercise of writ jurisdiction.
Facts: The central government enacted The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules in December 2003 (the ‘2003 Rules’) under The Citizenship Act, 1955. These Rules lay down guidelines for the government to prepare the National Register of Indian Citizens (NRC). The Foreigners’ Tribunals were established in Assam in 1964 to tackle the issue of illegal immigrants and these Tribunals functioned independently of the NRC process. The issues in the present case arose because of these two parallel ongoing processes deciding the citizenship status of people in Assam. While in some cases persons declared as Foreigners have been included in the NRC list, in others, siblings and close relatives of such persons have not been named in the NRC. Due to such a conflicting situation, the Petitioners argued that there was a conflict between paragraph 3(2) and paragraph 8 of the 2003 Rules. Under paragraph 3(2) of the 2003 Rules, all persons who have been declared foreigners by the “competent authority” would be excluded from the NRC. Paragraph 8 of the 2003 Rules provides a right to appeal to persons who had filed objections but are not satisfied with the outcome of the decision under the final list published under paragraph 7. Such persons have the option of appealing before the designated Tribunal constituted under the Foreigners (Tribunal) Order, 1964 (the ‘1964 Order’).
In respect of the same, there were three issues that had been put before the Court. The first issue was whether the Foreigners’ Tribunal is the competent authority referred to under sub-para (2) to paragraph 3 of the schedule to the 2003 Rules. The second issue related to the applicability of the principle of res judicata to Foreigners’ Tribunals. The third issue was whether the Supreme Court should exercise its power under Article 142 of the Constitution to set up an appellate forum for deciding disputes regarding the citizenship status of persons residing in Assam.
Holding: On the first question, the Court held that the “competent authority” under paragraph 3(2) of the 2003 Rules referred to the authority established under the Foreigners Act 1946, i.e., the Foreigners’ Tribunals (FT). The Foreigners Act and the Citizenship Act being “sister enactments” are “to be read harmoniously” (paragraph 18). It held that “the Rules framed under the Citizenship Act are subordinate legislation”(paragraph 18). Here, the Court relied on Section 6A of the Citizenship Act, which clearly mentions that the FT would be the competent authority to decide the citizenship status of an individual. Although mentioned in different contexts, the use of the expression ‘Competent Authority’ in paragraph 3 of the Schedule to the 2003 Rules has been used to refer to FTs, as has been done in Paragraph 3 of the amended 1964 Order. Thus, if the FTs decided such persons to be foreigners, then their names would not be included in the NRC.
On the second question, the Court held that the principle of res judicata would apply to the Tribunals. (Res judicata refers to a principle of law which states that the final decision given by a competent court on a matter between the same parties is binding, and cannot be put to litigation again.) “The determination would be final and binding on the Registering Authority under the Schedule and the Local Registrar'' as “paragraph 8 does not envisage and provide for a second round of litigation before the same authority” (paragraph 24). This means that once a case has been decided by the Tribunal, then an appeal against the decision would not be maintainable under paragraph 8 of the Schedule to the 2003 Rules.Thus, the findings of the FT are binding until reversed by a higher court.
The court also observed that even though the orders given by the FTs are not required to be detailed or reasoned, that by itself would not make their administrative orders.“ The expression ‘quasi-judicial order’ means a verdict in writing which determines and decides to contest issues and questions by a forum other than a court” (paragraph 19). The FTs reach a decision after making a proper inquiry into the case and function as per prescribed rules, thereby making them quasi-judicial authorities and not administrative ones. Additionally, it noted, unlike administrative authorities which function according to expediency and policy, the FTs, much like quasi-judicial bodies, act according to the mandated rules.
Thus any error of law or fact made by the FT can only be challenged by means of writ petition or review petition in the High Court. Herein, through writ petitions “the High Court would be entitled to examine the issue with reference to the evidence and material in the exercise of its power of judicial review premised on the principle of “error in the decision-making process”, etc. This serves as a necessary check to correct and rectify an ‘error’ in the orders passed by the Tribunal.” (paragraph 22) However, review petitions are applicable only in the cases of “contradicting decisions/opinions of Foreigners Tribunal in cases of near family members” or “family tree hearings” (paragraph 23).
On the question of establishing an appellate body, the Supreme Court held that it would not proceed to establish such a forum since “it is not a case of an unoccupied legislation” and that the facts do not warrant such interference by the Court (paragraph 25).
Significance: This judgement is significant as, by holding that Foreigners’ Tribunals are the final competent authority to decide on citizenship status of people in Assam, the Court has finally solidified the position of law. Given that Foreigners’ Tribunals are quasi-judicial bodies, they function according to principles of natural justice by default, and hence, the principle of res judicata applies to them.
There arises a twofold effect of this holding.
Firstly, since res judicata applies to FT orders, if a person has once been declared an Indian citizen by the FT, then the citizenship status of such a person cannot be questioned again. This effect can be seen in the recent case of Surman Ali @ Suman Ali v. Union of India, where the Gauhati High Court reversed FT orders declaring the petitioners to be foreigners since the FTs had already declared the petitioners to be Indian citizens in earlier proceedings.
However, on the flipside, by limiting the petitioner’s rights to challenge the FT orders only through , the Court effectively strips the individuals of the right to appeal and places them at the mercy of the arbitrarily functioning tribunals.
The Hon'ble Court placed reliance on the case of Sarbananda Sonowal v. Union of India to state that the FTs are governed by the standard of just, fair and reasonableness. Proceeding on this reasoning, the Hon’ble Court held that due to the inherent nature of functioning of the FTs, the principle of res judicata becomes applicable to them. At this juncture, it also becomes important to clarify that res judicata is not only applicable to cases arising due to a clash between NRC and Foreigners Tribunals Orders but also to cases wherein people have been reported directly to the Foreigners Tribunals and subsequently declared foreigners as can be seen in the recent case of Surman Ali @ Suman Ali v. Union of India.
However, the Courts seem to be overlooking the arbitrary functionality of the Foreigners’ Tribunals. There is lack of uniformity in procedure, and Tribunal members are often untrained in law or are unqualified. The Tribunal members are civil officers or even extremely young advocates who are appointed after a mere two day orientation program. In fact, a disturbing trend that has been seen is that judges who often have a very low record of recording foreigners are dispensed with quickly. Despite their erratic and often arbitrary functioning, by holding that the Foreigners Tribunals decisions can only be challenged through writ petitions, the Supreme Court has multiplied the already disastrous effects of the Foreigners Tribunals orders.
Since decisions of the Foreigners’ Tribunals often end up disproportionately affecting the most vulnerable societal sections of Assam, limiting the scope of appeal makes it very difficult for such people to challenge the Tribunals’ decisions. The process of filing writ petitions before the High Courts is an onerous task, which makes it difficult for persons, especially those from vulnerable sections of society, to challenge Tribunal orders. Additionally, although the Court has rightly pointed out that “this is not a case of an unoccupied legislation”, it was the solemn duty of the Court to provide us with alternative means after having stripped off our rights. This, thus, represents an omission on the part of the court.
Table of Authorities:
Sarbananda Sonowal v. Union of India & Anr, (2005) 5 SCC 665
Sarbananda Sonowal (II) v. Union of India, (2007) 1 SCC 174
Indian National Congress (I) v. Institute of Social Welfare & Ors., (2002) 5 SCC 685
Shrimati Ujjambai v. State of Uttar Pradesh & Anr., AIR 1962 SC 1621
Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi, (2002) 6 SCC 635
Rajesh Kumar & Ors. v. DY. CIT & Ors., (2007) 2 SCC 181
P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578
Pravasi Bhalai Sangathan v. Union of India, 8 (2014) 11 SCC 477
Surman Ali @ Suman Ali v. Union of India,WP(C)/6464/2019
Resources:
Sitamsini Cherukumalli, Gauhati High Court on the issue of Res Judicata in Foreigners’ Tribunal Proceedings, Parichay Blog, 3 May 2021.
NRC: The Right to Appeal, Supreme Court Observer, 8 May 2019.
Fuzail Ayyubi & Ibad Mushtaq, NRC: Abdul Kuddus – a judgment full of contradictions, The Leaflet, 25 May 2019.
Prachi Bharadwaj, Second round of litigation doesn’t lie before Foreigners Tribunal, SCC OnLine Blog, 23 May 2019.
Gautam Bhatia, The judicial presumption of non-citizenship, The Hindu, 23 July 2019.
Faizan Mustafa, Kangaroo tribunals: Foreigners’ Tribunals almost another arm of BJP government in Assam, The Indian Express, 8 October 2019.
Shuchi Purohit, Foreigners’ Tribunals, Parichay Blog, 10 July 2021.
Designed to Exclude, How India's Courts are allowing Foreigners Tribunals to render people stateless in Assam, Amnesty International, 2019.