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Abdul Kuddus Vs. Union of India (UOI) and Ors. - (Supreme Court) (17 May 2019)

When issue of nationality has already been determined under Foreigners (Tribunals) Order, 1964, an appeal would not be maintainable



Present order decides perceived conflict between sub-paragraph (2) to paragraph 3 and paragraph 8 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 (the 2003 Rules). It is urged on behalf of the Appellants that, an order of the Foreigners Tribunal is an executive order which renders an opinion and therefore, it cannot be equated with a judgment.

It is highlighted that in some cases, persons who have been declared to be a foreigner under the Foreigners Act have been included in the draft National Register of Citizens for the State of Assam, while in others siblings and close blood relations of such persons have been named in the draft National Register of Citizens. It is averred that in these cases of contradictions, an aggrieved person should be entitled to take recourse to paragraph 8 of the Schedule to the 2003 Rules.

The Foreigners Act and the Citizenship Act including the Rules framed under the two Acts have to be read harmoniously as both the Acts are inter-related and sister enactments. The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, as the case may be, can be challenged by way of writ proceedings. 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.

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.

There could be contradicting decisions/opinions of Foreigners Tribunal even in cases of near family members. Contradictions can be avoided when 'family tree hearing' are held. 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. 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 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 review jurisdiction before the High Court or present Court.

Where the issue and question of nationality has already been determined under the Foreigners (Tribunals) Order, 1964, 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 seen an earlier adjudication and decision by the Foreigners Tribunal. The contention of the Appellants on the perceived conflict pertaining to the adjudication on the citizenship status of persons rejected.


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