The Foreigners’ Tribunal bench of Gauhati High Court has indicated that once the tribunal has declared someone to be an Indian, the same person can’t be declared a non-Indian if brought before it a second time. The observation is crucial in a state which has seen several cases where a person declared as Indian had been sent notices to prove nationality twice or more times.
During a hearing of a case involving nationality, the court said the opinion of the Tribunal regarding the citizenship of a person would operate as “res judicata” – meaning the matter has already been decided upon and cannot be brought to court again.
Hearing a bunch of petitions earlier this week on citizenship, the Bench of Justices N Kotiswar Singh and Justice Nani Tagia said during a hearing that though the principle of res judicata “is based on public policy” it will “stand subsumed” under the overarching public policy governing a sovereign nation while dealing with illegal foreigners under the relevant laws. The decision, they said, was taken by high court in the 2018 Amina Khatoon case, but the bench observed that it is ‘not good law’ in view of the Supreme Court’s decision in the case of Abdul Kuddus.
While arguing that case, the state asserted that under Section 3 of the Foreigners Act, 1946, power is vested on the Central Government to detect and deport foreigners.
The Central Government delegated this power to the Superintendents of Police, while continuing to handle deportations.
Under the Foreigners (Tribunals) Order, 1964, the Superintendents of Police only seek an opinion from the Foreigners Tribunals and take the final call.
“A Foreigners Tribunal only renders an opinion. Therefore, it would be wrong to say that the Central Government or for that matter, Superintendents of Police would be bound by the opinion of the Foreigners Tribunal… consequently, opinion rendered by a Foreigners Tribunal cannot be construed as a judgment, (under the Amina Khatoon case)” the court said.
Now, petitioners, however, have contended that Amina Khatoon is no longer a good law to follow, citing several judgments of the Supreme Court.
The court then said that the opinion of the Tribunal will operate as “res judicata”. This would mean once the Tribunal has declared someone an Indian, he or she cannot be declared a foreigner in a second hearing.