Appeals Against Non Inclusion In NRC Maintainable Only When Foreigners Tribunal Has Not Already Decided Nationality: SC [Read Judgment]

The bench comprising the Chief Justice of India Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna also refused to 'create' an appellate forum for deciding disputes regarding the citizenship status of persons residing in the State of Assam.

The bench, in Abdul Kuddus vs. UoI, was considering a batch of appeals in which the contention was that an aggrieved person (who is not included in NRC) should be entitled to take recourse to paragraph 8 of the Schedule to the 2003 Rules, and the principles of Res Judicata would not apply. Para 8 provides appeal to Foreigners Tribunal against non inclusion in NRC.

Foreigners Tribunal Orders Will Operate As Res Judicata

The court said that the Competent Authority referred to in sub-para (2) to paragraph 3 of the Schedule would be the Tribunal constituted under the Foreigners Act i.e. the 1964 Order. Rejecting the contention of the appellants, the bench observed:

"Thus, it would be incorrect to hold that the opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would not operate as res judicata. Both the opinion of the Tribunal and the Order of the Registering Authority result in determination of rights/status under the statute and by an authority after a contest on the merits which would necessarily operate as a bar to subsequent proceedings before the same authority for re-determination of the same issue/question"

The court further said:

The contention that a person concerned should be permitted to double-dip and be entitled to a second round of litigation before the Foreigners Tribunal notwithstanding the earlier opinion expressed by the Foreigners Tribunal is far-fetched, and completely unacceptable. The plea is fallacious and has no merit. This contention therefore must be rejected and fails.

Can file Writ Petition

The bench added that a person aggrieved by the opinion/order of the Tribunal can challenge the findings/opinion expressed by way of a writ petition wherein 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, the bench said.

Res judicata would not apply to separate proceedings even if against two closely related but different persons

The court also addressed the contention that there could be contradicting decisions/ opinions of Foreigners Tribunal even in cases of near family members, albeit contradictions can be avoided when 'family tree hearing' are held as is now being undertaken. The court said that res judicata would not apply to separate proceedings even if against two closely related but different persons. It said:

"In the absence of joint decisions, conflict is possible as the principle of res judicata would not apply to separate proceedings even if against two closely related but different persons, as each case has to be strictly decided on the facts and evidence on record. Secondly, there is a possibility that some/one of the near family members may have migrated to India prior to midnight of March 24, 1977 and, therefore, fall in a different category. Any such conflict, however, would not compel us to take a different view, in terms of the clear statutory provisions. In a given case, the person aggrieved would have liberty to invoke writ jurisdiction, or if necessary, review jurisdiction before the High Court or this Court to ensure that no injustice is done. Any order passed in case of close family members, subsequent to adjudication order determining the citizenship status of a person, would necessarily be a material evidence which can be duly taken note of and considered while deciding a writ petition or a review application"

Can't Direct To Create An Appellate Forum

It also rejected the plea to invoke Article 142 of the Constitution and create an appellate forum. The court said:

"We would not give any such direction and entrench upon the field of legislation reserved for legislature. This is not a case of an unoccupied legislation nor would facts justify the Court to exercise powers as in the cases of vacuum and when there is a complete absence of active law to provide for effective enforcement of basic human rights."

Disposing of the appeals, the bench finally held:

"Paragraph 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 paragraph 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. Paragraph 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 paragraph 8 of the Schedule to the 2003 Rules will apply when there has not been an earlier adjudication and decision by the Foreigners Tribunal."

Click here to Download the Judgment 

Read Judgment