Amina Khatun v. Union of India, WP(C) No. 7339/2015
Read the order here.
Date of the decision: 19.04.2018
Court: Gauhati High Court
Judges: Justice Ujjal Bhuyan (authoring) and Justice Ajit Borthakur
Summary: The Gauhati High Court held that the principle of res judicata would not apply in proceedings instituted under the Foreigners Act, 1946 and the Foreigners (Tribunal) Order 1964 since the Foreigners’ Tribunals are not courts and therefore the proceedings cannot be termed as judicial proceedings. This judgement was overruled by the decision of the Supreme Court in the case of Abdul Kuddus v. Union of India, wherein it was held that res judicata would be applicable to opinions rendered by the Foreigners’ Tribunals.
Facts: The Court was hearing multiple writ petitions involving a common question of law, and the case of Amina Khatun was taken up as the lead case. In this case, a reference was made against the Petitioner by the Superintendent of Police (Border) to the Foreigners’ Tribunal. The Foreigners’ Tribunal declared that the Petitioner was not a doubtful voter. Despite this decision, a fresh reference was made against the Petitioner by the Superintendent of Police (Border), based on which another Foreigners’ Tribunal (“FT”) declared the Petitioner as a foreigner.
Similar issues arose in the other petitions, wherein the petitioners were previously declared citizens, and later as foreigners, by two different Tribunals. The Petitioners argued that the principle of res judicata (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) should apply to FT proceedings since a person could not be vexed twice on the same issue.
Holding: The Gauhati High Court, on an analysis of the history of the Foreigners’ Tribunals and their powers vis-a-vis civil courts, held that res judicata is inapplicable to FT proceedings. The principle of Res Judicata, encapsulated by Section 11 of the Code of Civil Procedure 1908, essentially means that the same issue, between the same parties, shall not be decided more than once by a competent court.
With respect to the nature of the proceedings, the Court examined the Foreigners’ (Tribunals) Order, 1964 to hold that a proceeding before an FT is summary in nature since it is only required to render an opinion as to whether the proceedee is a foreigner or not. A forum rendering such an opinion could not be seen as a Court. Reliance was placed on an earlier decision of the Gauhati High Court wherein it was held that the self-regulated FT proceedings are neither civil nor criminal in nature, since there is no adjudication of lis or dispute between two litigants in an adversarial manner. The Court thus concluded that a proceeding before a FT is sui generis. Furthermore, a reference made by a referral authority to a Foreigners Tribunal was neither a lis nor a controversy since it is only an opinion that the referral authority seeks from the FTs. To that extent, neither the reference could be construed as a lis nor could the referral authority and the suspect be called parties to the lis since they are not litigants to any dispute.
With respect to the nature of decision imparted by the FTs, the Court examined a decision of the Supreme Court wherein it was explained that a “judgement is the decision of a court of justice upon the respective rights and claims of the parties to an action in a suit submitted to it for determination.” (paragraph 69) The Court then compared the tribunals for industrial disputes, wherein the award became enforceable suo moto post publication, with FTs, wherein the opinions rendered did not change their nature even after the Central Government acted on it. According to Section 6A(1)(e), of the Citizenship Act, 1955 a person shall be deemed to have been detected to be a foreigner on the date on which a FT submits such an opinion. However, the powers to actually detect and deport foreigners’ vests in the Central Government vide Section 3 of the Foreigners Act, 1946. Thus, it is the government that takes the ultimate decision on the expulsion of foreigners. It was thus reasoned that the FT’s decision is in the nature of an opinion, and could not be equated with a judgement since the Foreigners’ Tribunal is not the final deciding authority on the rights of the parties.
Relying on its earlier decision in Mainul Hoque v. Union of India, the Gauhati HC in Amina Khatun said that “a Foreigners Tribunal assigned the task of rendering an opinion on a reference made to it by the Superintendent of Police (Border) is not a Court. Therefore, a Member of Foreigners Tribunal is not a judge. Viewed in the above context, a negative opinion rendered by a Foreigners Tribunal opining that the proceedee is not a foreigner is not a judgement and cannot bind the Central Government or the delegated authority i.e., the jurisdictional Superintendent of Police (Border) for all times to come and certainly cannot debar them from seeking a fresh opinion, if circumstances so warrant.” (paragraph 71). This Court thus stated that since the FT only renders an opinion on a reference, it could not be called a Court. Since a FT is not a court, the Members of the FT could not be termed as Judges. Therefore, the opinions rendered by them would not have the binding force that judgements possess. Hence, it would be open to the Central Government or delegated authority to seek a fresh opinion, if need be.
With respect to the principle of res judicata, the Court relied on Anowar Ali v. State of Assam wherein it was held that even if an Illegal Migrants Determination Tribunal (“IMDT”) (the precursor to FTs) had declared the proceedee to be not an illegal migrant, it would be open to the State to make a fresh reference against such a proceedee to the FTs, since the impugned IMDT placed a very high burden of proof on the State. Thus, res judicata was held inapplicable to such situations.
The Gauhati HC additionally held that that the application of the principle of res judicata to FT proceedings would go against the “overarching public policy, i.e., to ensure national security and to protect the integrity of the nation” (paragraph 73) in light of the large-scale illegal migration of foreigners from Bangladesh, which, according to the court, threatened the security and integrity of the nation. In holding this it relied on a landmark decision of the Supreme Court in Sarbananda Sonowal I wherein it was held that it is “the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution.” (paragraph 56)
Thus, the Court held that “as a legal proposition, principle of res judicata embodied in Section 11 of the Code would not be attracted to a proceeding under the Foreigners Act and the Foreigners (Tribunals) Order.” (paragraph 78)
Significance: The inapplicability of the principle of res judicata to decisions by Foreigners’ Tribunals is significant because individuals could be required to prove their citizenship more than once. This meant that an earlier opinion of the Foreigners’ Tribunal declaring a person as a citizen could no longer be treated as the final word on their citizenship status. This would perpetuate a cycle of uncertainty. The judgement led to the emergence of a legally legitimised culture of harassment wherein proceedees who had successfully proved their citizenship were forced to prove the same in multiple legal proceedings, a process which is extremely taxing, both financially and mentally.
The Gauhati High Court, in an earlier decision had declared that the issues related to citizenship would be exclusively triable by the FTs. Thus, proceedees have no recourse to courts, and the FT is the only forum available to them. However, due process required that the body which ousts the jurisdiction of the civil court, should also offer the constitutional safeguards which such courts offer. This found resonance in the decision of the Supreme Court wherein it was held that Tribunals too are expected to administer justice in a fair and impartial manner, as is expected from Courts.
The Court’s observation that the FT decisions are only in the nature of opinions and not final judgements does not reflect the ground reality. There have been numerous instances of people who were arrested immediately after the FT declared them as foreigners and then sent to detention centres. Even though, as per the Assam government, the passing of detention and arrest orders is beyond the jurisdiction of the FTs, such orders are passed frequently and people are detained on the strength of such orders.
The Gauhati High Court’s reasoning that applying res judicata would go against public policy echoes the troubling approach espoused by the Supreme Court in Sarbananda Sonowal v. Union of India. The Supreme Court therein had relied on a White Paper, not grounded in actual surveys or records, which grossly overstated the number of illegal migrants into the state and the consequential demographic changes it wrought. Similarly, part of the Gauhati High Court’s reasoning stems from arguments of illegal migration and threats to national security. The Court, as an independent decision maker, should not have automatically accepted the national security argument as a defence without subjecting it to proper scrutiny.
This judgement was overruled by the decision of the Supreme Court in the case of Abdul Kuddus v. Union of India, wherein it was held that an opinion by the Foreigners’ Tribunal is a quasi-judicial order, final and binding on all parties to the case. Sadly, even after this decision, several FTs have still declared those people who had been declared Indian citizens on a prior reference as foreigners. However, it is a positive development that the Gauhati HC, following the ratio laid down in Abdul Kuddus, has been overturning such decisions.
Table of Authorities:
Mainul Haque v. Union of India, WP(C) 8675/2018
Kausik Cooperative Civil Society v. N. Prabhathamma, Special Leave Petition (Civil) No. 2695/2010 (SC)
Mojibur Rahman v. Union of India, WP(C) No. 2255/2017
Sarifa Begum v. Union of India, WP(C) No. 4989/2016
Hussain Ahmed v. Ahmed Ali, RSA No. 212 of 2005
Assam Sanmilita Mahasangha v. Union of India, WP(C) No. 562/2012 (SC)
Subramanian Swamy v. State of Tamil Nadu, Civil Appeal No. 10620/2013 (SC)
Anowar Ali v. State of Assam, 2014 (3) GLT 500.
State of Assam v. Moslem Mondal, Review Pet. No. 22/2010
Bahaluddin Sheikh (Mohd.) v. Union of India, WP(C) No. 256/2013
Sarbananda Sonowal v. Union of India, WP(C) No. 117/2006 (SC)
Sarbananda Sonowal v. Union of India, WP(C) No. 131/2000 (SC)
Pondicherry Khadi and Village Industries v. P. Kulathangan, Civil Appeal No 8537/2003 (SC)
Govindan Gopalan v. Raman Gopalan, CRP. No. 1273 of 1977 (Kerala HC)
Kunjan Nair Sivraman Nair v. Narayanan Nair, Civil Appeal No. 838/2004 (SC)
Industrial Grid and Investment Corporation of India v. Grapco Industries Ltd, Civil Appeal No. 3167/1999 (SC)
State of Tamil Nadu v. S. Thangavel, Civil Appeals Nos. 15419-22/1996 (SC)
Suluchona Amma v. Naryanan Nair, Civil Appeal No. 5152/1993 (SC)
Workmen v. Straw Board Manufacturing Company, Civil Appeal No. 52/1969 (SC)
Masud Khan v. State of UP, WP No 117/1973 (SC)
Anwar v. State of J&K, WP No. 131/1970 (SC)
B. Temple v. Vodapalli Venkata, Civil Appeal No. 431 of 1967 (SC)
Burn & Co. v. Employees, Civil Appeal No. 325/1955 and 174/1956 (SC)
Resources:
Sitamsini Cherukumalli, Gauhati High Court on the issue of Res Judicata in Foreigners’ Tribunal Proceedings, Parichay, 3 May 2021.
Designed to Exclude: How India’s Courts are allowing Foreigners’ Tribunals to render people stateless in Assam, Amnesty International India, 2019.
M. Iqbal, Identifying ‘Immigrants’ through Violence: Memory, Press, and Archive in the making of ‘Bangladeshi Migrants’ in Assam, PhD thesis, University of Westminster, 2018.
Sarfraz Nawaz and Surajit Das, A Panacea Bad in Law (A Study into the Origin, Nature and Constitutional Validity of Foreigners Tribunals), SCC Online Blog, 2 November 2021.
M. Mohsin Alam Bhat, Twilight citizenship, India Seminar No. 729, May 2020.
Gautam Bhatia, The Judicial Presumption of non-citizenship, The Hindu, 23 July 2019.
Tora Agarwala, Assam directs Foreigners’ Tribunals to not pass ‘consequential orders’ on detention, deportation, The Indian Express, 13 September 2021.
Angana Chakrabarti, First ‘Indian’, then ‘foreigner’, Gauhati HC frees Assam woman caught in tribunal flip-flop, The Print, 16 December 2021.
This case note is part of Parichay’s ongoing project to study, track, and publish key propositions and latest developments in citizenship law and adjudication in India. This note was prepared by P Ritika Rao.