Sital Mandal & Ors. v. The Union of India & Ors., WP(C)/822/2019
Read the judgment here.
Date of Decision: 28.04.2022
Court: High Court of Gauhati
Judges: Justice N Kotiswar Singh & Justice Nani Tagia
Summary: The Gauhati High Court upheld the verdict laid down in the Abdul Kuddus case which stated that res judicata is applicable in judgments given by the Foreign Tribunals. The Court analysed the conflicting judgments of Amina Khatoon v Union of India (“Amina Khatoon”) and Abdul Kuddus v. Union of India (“Abdul Kuddus”) and concluded that the law in Abdul Kuddus favouring the applicability of res judicata to Foreigner’s Tribunals would override the contradictory verdict in Amina Khatoon.
Facts: The Gauhati High Court was considering a batch of writ petitions concerning the applicability of res judicata in judgements given by the Foreigner’s Tribunals (“FT”). The common theme in the cases was that a reference was made against the Petitioners to the Foreigners’ Tribunal . The FT declared that the Petitioners were not foreigners. However, a fresh reference was made against the Petitioners, based on which another FT declared the Petitioners as foreigners.
In Amina Khatoon, in 2018, 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 (“1964 Order”) since the FTs are not courts and therefore the proceedings cannot be termed as judicial proceedings. In Abdul Kuddus (2019), the Supreme Court held that the principle of res judicata will apply even to quasi-judicial bodies and concluded the FT as such a body.
The Petitioners argued that the principle of res judicata (i.e.a legal principle that states that a competent court's final decision on a matter involving the same parties is final and cannot be pursued appealed again) is applicable to FT proceedings since the same has been held firmly by the Supreme Court in Abdul Kuddus. The Court examined Amina Khatoon and Abdul Kuddus to cull out the ratio in both the cases.
Holding: In the present case the Gauhati High Court primarily focussed on two aspects: (i) the implied overruling of Amina Khatoon by Abdul Kuddus; and (ii) the overarching argument regarding the Public policy wherein the Court decided that the the legislature, and not the judiciary was best equipped to decide the value of a policy . The Gauhati High Court rejected the argument of the respondents that since the Amina khatoon judgement was binding as it had never been challenged or bought to the Supreme Court by stating that Article 141 of the Constitution institutes that the decision of the SC is binding on the High Courts and by extension of that the Foreign Tribunals.
The Court also addressed the issue regarding differing opinions of the FTs with respect to family members. This was considered in Abdul Kuddus wherein the SC held that the same stance as for individuals will be taken for family members. An aggrieved person can take recourse to writ petitions. (para 28 of Abdul Kuddus) This was further extended to highlight the errors made by FTs while deciding cases. In such instances, the individual can file writ petitions as well.
In Amina Khatoon, the Court determined that the Tribunal is not a court, and because the overarching Public policy of detecting and deporting foreigners must take precedence over the principle of res judicata, the Tribunal's opinion can not have a binding effect. According to the Court, the detection and declaration of foreigners illegally residing in India is a higher Public policy concern because it affects national security. Thus, the principle of res judicata cannot be invoked on the basis of higher Public policy to prevent the State from acting against an illegal foreigner despite an adverse opinion previously rendered by an FT.
\The Supreme Court in Abdul Kuddus did not apply any doctrine of overarching value of the Public policy. Although it held that res judicata is based on Public policy, it will be subsumed under the overarching Public policy governing a sovereign nation when dealing with illegal foreigners under the Foreigners’ Act and the 1964 Order.
The Gauhati High Court in the present case while revisiting Amina Khatoon established that it can have serious consequences if a Public policy is judicially determined to be of overarching nature, overriding other equally well-established judicial norms. It was of the opinion that the judiciary is not well suited to determining which policy will have greater overall value than others. The legislature or the law-making authority is the best place to take this approach. (Para 20)
The Court rendered the grounds on which Amina Khatoon was decided were futile in Abdul Kuddus. The Court scrutinized the argument of whether the FT is an administrative body hence rendering its verdicts merely executive order and disposed of all the 11 petitions. It ruled that persons who had been declared Indians and subsequently found to be foreigners will be deemed to be Indian.
Significance: This judgment paves way for a more progressive interpretation of the legal text. This becomes important in the context where there have been instances where persons once declared Indians have been sent notices suspecting their nationality.
The applicability of res judicata is pertinent because individuals are otherwise required to prove their nationality twice. This essentially means that they have to go through the grueling process over and over again. Amina Khatoon established a legally legitimized process of harassing individuals on the basis of their nationality,thus starting a perpetual chain of uncertainty.This judgment while drawing a clear distinction between Abdul Kuddus and Amina Khatoon also explicitly states that Amina Khatoon is bad in law and questioned how this case assigned priority to some Public policy imperatives over others, such as regarding the policy objective of national security over the rights of foreigners. In this regard, FTs were determined to be quasi-judicial bodies and their function would merely be to look into the initial order passed and decide on the basis of the same.
FTs have the authority to make a decision on one of the most important aspects of an individual's life: their citizenship status. Citizenship is often referred to as the right to have rights because many of the Constitution's guarantees are only available to citizens. Meanwhile, non-citizenship exposes an individual to either detention or deportation. On the one hand, a negative finding by the tribunal could result in an individual being deported or detained, while a positive finding by the tribunal provided no relief at all as the entire process could be restarted at any time. Hence this judgment is relevant as it brings respite to the individuals in both regards.
The judgment, however, comes with its own shortcomings. It limits the right to appeal under Paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. It states that only those persons who had filed claims and objections and against whom there was no prior decision by the Tribunal have the right to appeal. If individuals have been wrongfully declared foreigners they will have to file a fresh writ petition. While the court has laid out how the powers of FTs would be limited by res judicata, The very structure and organization of FTs are questionable. They were established during colonial rule with the purpose of deporting foreigners. These FTs have the power to establish their own procedures. Further, they are managed by civil servants and lawyers who merely get a two-day orientation to run the same. These inconsistencies contribute to the controversial nature of the detention and deportation policy.
References:
Tora Agarwala, ‘Once declared Indian, person can’t be tried again and pronounced foreigner: Gauhati HC’ (Indian Express, 6 May 2022)
P Ritika Rao, ‘Amina Khatun v. Union of India, WP(C) No. 7339/2015’ (Parichay Blog, 19 April 2018)
‘Designed to Exclude: How India’s Courts are allowing Foreigners’ Tribunals to render people stateless in Assam’, (Amnesty International India, 2019)
Tora Agarwala, ‘Assam directs Foreigners’ Tribunals to not pass ‘consequential orders’ on detention, deportation’, (The Indian Express, 13 September 2021)
Gautam Bhatia, ‘Reforming the Foreigners Tribunals’, (Hindustan Times, 02 January, 2022)
Faizan Mustafa, ‘Kangaroo tribunals: Foreigners’ Tribunals almost another arm of BJP government in Assam’, (Indian Express, 08 October, 2019)
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 Dyuti Anand.