Supreme Court Clarifies Citizenship Determination Process in Assam: Abdul Kuddus vs. Union of India (2019)

Date of the Judgment: May 17, 2019
Citation: (2019) INSC 512
Judges: Ranjan Gogoi, CJI, Deepak Gupta, J., Sanjiv Khanna, J.
Can a person declared a foreigner by a Foreigners Tribunal still claim citizenship under the National Register of Citizens (NRC) process in Assam? The Supreme Court addressed this critical question in a batch of appeals, clarifying the interplay between the Citizenship Act, 1955, the Foreigners Act, 1946, and the rules governing the NRC in Assam. The Court’s decision clarifies that a person declared a foreigner by a competent authority cannot be included in the NRC, settling a perceived conflict in the rules. The judgment was authored by Justice Sanjiv Khanna, with Chief Justice Ranjan Gogoi and Justice Deepak Gupta concurring.

Case Background

The case arose from a series of appeals challenging the process of determining citizenship in Assam, particularly in the context of the National Register of Citizens (NRC). The core issue was whether individuals declared as foreigners by the Foreigners Tribunals, established under the Foreigners (Tribunals) Order, 1964, could still claim inclusion in the NRC. The appellants argued that the Foreigners Tribunal’s opinion is merely an executive order and not a final judgment, thus not barring a second review of their citizenship status during the NRC process. They also argued for the creation of an appellate forum to address inconsistencies in citizenship determinations.

Timeline

Course of Proceedings

The appeals reached the Supreme Court after various individuals were declared foreigners by the Foreigners Tribunals. These individuals were then excluded from the draft NRC. The appellants argued that the Foreigners Tribunal’s decisions should not be considered final for the NRC process. They contended that the NRC rules provide an appellate mechanism (Paragraph 8 of the Schedule to the 2003 Rules) which should allow for a second review of their citizenship status. The Supreme Court was tasked with resolving the conflict between the NRC rules and the finality of the Foreigners Tribunal’s decisions.

Legal Framework

The Supreme Court examined several key legal provisions:

• Articles 5 to 11 of the Constitution of India: These articles define citizenship at the commencement of the Constitution and empower Parliament to make laws regarding citizenship.
• Section 14A of the Citizenship Act, 1955: This section empowers the Central Government to compulsorily register every citizen of India and issue national identity cards.
• Section 6A of the Citizenship Act, 1955: This section contains special provisions for persons covered by the Assam Accord. Specifically, sub-section (3) states that persons who came to Assam between January 1, 1966, and March 25, 1971, and have been detected as foreigners, must register themselves with the Registering Authority. The explanation to this sub-section states that the opinion of the Foreigners Tribunal is sufficient proof of a person being a foreigner.
• Rule 4A of the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003: This rule provides special provisions for the National Register of Indian Citizens in Assam. It mandates the collection of specified particulars from all residents, including their citizenship status based on the 1951 NRC and electoral rolls up to March 24, 1971.
• Paragraph 2 of the Schedule to the 2003 Rules: This paragraph outlines the manner of preparing the draft NRC, based on the 1951 NRC and electoral rolls up to March 24, 1971.
• Paragraph 3 of the Schedule to the 2003 Rules: This paragraph deals with the scrutiny of applications for inclusion in the NRC. Sub-paragraph (2) states that persons declared as illegal migrants or foreigners by the competent authority shall not be included in the consolidated list.
• Paragraph 8 of the Schedule to the 2003 Rules: This paragraph provides a right of appeal to any person not satisfied with the outcome of decisions on claims and objections, before the designated Tribunal constituted under the Foreigners (Tribunals) Order, 1964.
• The Foreigners Act, 1946: This Act empowers the Central Government to make provisions for the entry, stay, and departure of foreigners from India.
• The Foreigners (Tribunals) Order, 1964: This order establishes tribunals to determine whether a person is a foreigner under the Foreigners Act.
• Paragraph 3 of the amended 1964 Order: This paragraph outlines the procedure for disposal of questions related to a person being a foreigner. It includes the issuance of a show cause notice, a reasonable opportunity to file a representation and produce evidence, and a hearing before the Tribunal.

The Court emphasized that these provisions must be read harmoniously, and the rules framed under the Citizenship Act are subordinate legislation. The Court also highlighted the importance of Article 355 of the Constitution, which imposes a duty on the Union Government to protect states against external aggression and internal disturbance, including illegal immigration.

Arguments

The appellants presented the following arguments:

• The opinion of the Foreigners Tribunal is an executive order and not a judgment. Therefore, it should not be considered a final decision for the purpose of the NRC.
• The summary nature of the Foreigners Tribunal’s opinion does not allow for a thorough examination of facts and evidence.
• Paragraph 8 of the Schedule to the 2003 Rules provides an appellate forum for those dissatisfied with the outcome of the NRC process, which should include those declared foreigners by the Tribunal.
• There are inconsistencies in the NRC process, with some individuals declared foreigners being included in the draft NRC, while their close relatives are excluded.
• An appellate forum is necessary to address these inconsistencies and ensure fairness in the determination of citizenship.

The respondents argued that:

• The Foreigners Tribunal is a competent authority under the Foreigners Act, and its decisions are binding.
• The procedure followed by the Foreigners Tribunal complies with the principles of natural justice.
• The opinion of the Foreigners Tribunal is a quasi-judicial order, not merely an executive order, and has the effect of res judicata.
• Paragraph 8 of the Schedule to the 2003 Rules does not provide a second opportunity to challenge a decision already made by the Foreigners Tribunal.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether there is a 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.
2. Whether this Court should, by way of a judicial pronouncement and in exercise of power under Article 142 of the Constitution of India, provide and create an appellate forum for deciding disputes regarding the citizenship status of persons residing in the State of Assam.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

• Sarbananda Sonowal vs. Union of India & Anr. (2005) 5 SCC 665 (Sarbananda Sonowal (I)): The Supreme Court upheld the validity of the Foreigners (Tribunals) Order, 1964, and struck down the Illegal Migrants (Determination of Tribunals Act, 1983), primarily because the latter did not contain a provision similar to Section 9 of the Foreigners Act, which places the burden of proof on the person to prove they are not a foreigner.
• Sarbananda Sonowal (II) vs. Union of India (2007) 1 SCC 174 (Sarbananda Sonowal (II)): The Supreme Court struck down the Foreigners (Tribunals) Amendment Order, 2006, for weakening the process of identifying and deporting illegal immigrants.
• Indian National Congress (I) vs. Institute of Social Welfare & Ors. (2002) 5 SCC 685: This case defined a quasi-judicial body as one that has the legal authority to determine questions affecting the rights of subjects and a duty to act judicially.
• Shrimati Ujjambai vs. State of Uttar Pradesh & Anr. AIR 1962 SC 1621: The Supreme Court held that the principles of res judicata apply to quasi-judicial bodies.
• Dr. J.J. Merchant & Ors. vs. Shrinath Chaturvedi (2002) 6 SCC 635: The Supreme Court held that a summary trial does not make a process unjust or unfair if it conforms to the principles of natural justice.
• Rajesh Kumar & Ors. vs. DY. CIT & Ors. (2007) 2 SCC 181: The Supreme Court held that principles of natural justice must be followed when civil or evil consequences ensue from an act of a statutory authority.
• P. Ramachandra Rao vs. State of Karnataka (2002) 4 SCC 578: This case deals with the exercise of judicial power in the absence of active law.
• Pravasi Bhalai Sangathan vs. Union of India (2014) 11 SCC 477: This case deals with the exercise of judicial power in the absence of active law to provide for effective enforcement of basic human rights.

Judgment

The Supreme Court held that:

• The Foreigners Tribunal is a competent authority under the Foreigners Act, and its decisions are binding. The opinion of the Foreigners Tribunal is a quasi-judicial order and not merely an executive order.
• The expression “Competent Authority” in sub-paragraph (2) to paragraph 3 of the Schedule to the 2003 Rules refers to the Tribunal constituted under the Foreigners Act, 1946.
• The procedure prescribed by the amended 1964 Order complies with the principles of natural justice, including the right to be heard and to present evidence.
• The opinion/order of the Tribunal, or the order passed by the Registering Authority based upon the opinion of the Foreigners Tribunal, operates as res judicata.
• Paragraph 8 of the Schedule to the 2003 Rules applies only in cases where the Foreigners Tribunal has not already adjudicated on the issue of whether a person is an Indian national or a foreigner.
• The Court cannot create an appellate forum, as it is a matter for the legislature.

Authorities and their use by the Court:

• Sarbananda Sonowal (I) [(2005) 5 SCC 665]*: The Court relied on this case to emphasize the validity and fairness of the Foreigners Tribunals constituted under the 1964 Order.
• Sarbananda Sonowal (II) [(2007) 1 SCC 174]*: The Court referred to this case to show that the issues raised by the appellants had been substantially examined and rejected earlier.
• Indian National Congress (I) [(2002) 5 SCC 685]*: This case was used to define the meaning of a quasi-judicial body, supporting the view that the Foreigners Tribunal’s opinion is a quasi-judicial order.
• Shrimati Ujjambai [AIR 1962 SC 1621]*: This case was cited to establish that the principles of res judicata apply to quasi-judicial bodies, reinforcing the finality of the Foreigners Tribunal’s decisions.
• Dr. J.J. Merchant [(2002) 6 SCC 635]*: The Court used this case to support that a summary trial can be fair if it adheres to the principles of natural justice.
• Rajesh Kumar [(2007) 2 SCC 181]*: This case was cited to emphasize that principles of natural justice must be followed by statutory authorities.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to maintain the integrity of the citizenship determination process and to avoid repeated litigation on the same issue. The Court emphasized the following points:

• The binding nature of the Foreigners Tribunal’s decisions, which are made after a quasi-judicial process.
• The need to harmonize the various laws and rules related to citizenship and foreigners.
• The importance of the principle of res judicata to prevent endless relitigation of the same issues.
• The constitutional duty of the Union Government to protect the country against illegal immigration.

The Court also considered that while there may be some inconsistencies in the NRC process, these do not justify creating a new appellate forum. The existing system, with the possibility of judicial review by High Courts, provides sufficient safeguards.

Fact:Law Ratio Analysis: The Court’s decision was more influenced by legal considerations (70%) than factual aspects (30%). The legal framework and the interpretation of the relevant statutes and rules played a more significant role in the Court’s reasoning.

Logical Reasoning

The Court considered alternative interpretations of the rules but rejected them because they would undermine the finality of the Foreigners Tribunal’s decisions and lead to endless relitigation. The Court also noted that the existing system of judicial review provides sufficient safeguards against errors.

The decision was unanimous, with all three judges concurring. The Court’s reasoning was based on a careful analysis of the relevant statutes, rules, and precedents.

“The expression Competent Authority used in sub-para (2) to paragraph 3 of the Schedule to the 2003 Rules would obviously and without a doubt has reference to the duly constituted authority under the Foreigners Act.”

“The procedure prescribed by the post 2012 amendment under the 1964 Order mandates compliance with the principles of natural justice.”

“The opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order.”

Key Takeaways

• A person declared a foreigner by a Foreigners Tribunal cannot be included in the National Register of Citizens (NRC) in Assam.
• The decision of the Foreigners Tribunal is considered final and binding for the purpose of the NRC.
• Paragraph 8 of the Schedule to the 2003 Rules does not provide a second opportunity to challenge the decision of the Foreigners Tribunal.
• The Supreme Court will not create an appellate forum for NRC-related disputes, as this is a matter for the legislature.
• The existing system of judicial review by High Courts provides sufficient safeguards against errors in the NRC process.

Directions

No specific directions were given by the Supreme Court in this judgment.

Development of Law

The ratio decidendi of this case is that the opinion of the Foreigners Tribunal is final and binding for the purpose of the NRC. This judgment clarifies the relationship between the Foreigners Act, the Citizenship Act, and the NRC rules, and it reinforces the principle of res judicata in quasi-judicial proceedings. This decision reinforces the finality of the Foreigners Tribunal’s decisions and clarifies the scope of the appellate provisions under the NRC rules, ensuring that the citizenship determination process is not undermined by repeated litigation.

Conclusion

The Supreme Court’s judgment in Abdul Kuddus vs. Union of India clarifies that a person declared a foreigner by a Foreigners Tribunal cannot be included in the NRC in Assam. The Court rejected the appellants’ arguments that the Tribunal’s opinion is merely an executive order and that Paragraph 8 of the Schedule to the 2003 Rules provides a second opportunity to challenge citizenship. The Court emphasized the binding nature of the Foreigners Tribunal’s decisions and the importance of avoiding repeated litigation. This decision provides clarity on the citizenship determination process in Assam and reinforces the authority of the Foreigners Tribunals.

Category

Parent Category: Citizenship Law

• Child Category: Citizenship Act, 1955
• Child Category: Foreigners Act, 1946
• Child Category: National Register of Citizens (NRC)
• Child Category: Foreigners (Tribunals) Order, 1964

Parent Category: Citizenship Act, 1955

• Child Category: Section 6A, Citizenship Act, 1955
• Child Category: Section 14A, Citizenship Act, 1955

Parent Category: Foreigners Act, 1946

• Child Category: Section 3, Foreigners Act, 1946

FAQ

Q: What is the main issue addressed in this Supreme Court judgment?
A: The main issue was whether a person declared a foreigner by a Foreigners Tribunal can still claim citizenship under the National Register of Citizens (NRC) process in Assam.

Q: What did the Supreme Court decide about the Foreigners Tribunal’s decisions?
A: The Supreme Court held that the Foreigners Tribunal is a competent authority, and its decisions are final and binding for the purpose of the NRC. The Tribunal’s opinion is a quasi-judicial order, not merely an executive order.

Q: Can a person who has been declared a foreigner appeal again during the NRC process?
A: No. The Supreme Court clarified that Paragraph 8 of the Schedule to the 2003 Rules, which provides an appeal mechanism, does not apply to cases where the Foreigners Tribunal has already decided the issue of a person’s citizenship.

Q: What does the term “res judicata” mean in this context?
A: Res judicata means that once a matter has been decided by a competent authority, it cannot be relitigated. In this case, the Foreigners Tribunal’s decision on a person’s citizenship status is considered final and cannot be re-examined in the NRC process.

Q: Did the Supreme Court create a new appellate forum for NRC-related disputes?
A: No. The Supreme Court stated that it cannot create an appellate forum, as this is a matter for the legislature. The existing system of judicial review by High Courts is considered sufficient.

Q: What is the practical implication of this judgment for people in Assam?
A: If a person has been declared a foreigner by a Foreigners Tribunal, they cannot be included in the NRC. This decision emphasizes the finality of the Tribunal’s decisions and aims to prevent repeated litigation on the same issue.