Wednesday 25 May 2022
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Gauhati High Court: Once declared citizen, individual can’t be tried as foreigner

The Gauhati High Court, while hearing a set of petitions, invoked a May 2019 order by the Supreme Court to arrive at this judgment last week

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Once a person has been declared an Indian in the Foreigners Tribunals, he or she cannot be brought to the tribunal ever again and declared a foreigner — a two-member bench of the Gauhati High Court ruled in a judgment last week. The court cited the principle of “res judicata“, which debars a re-opening of a case by the same parties once a court has ruled on the issue. It applies to the Assam Foreigners Tribunals, the court said.

There have been several instances of a person being tried for his or her nationality at the tribunals after being already declared an Indian citizen.

The Gauhati High Court, while hearing a set of petitions, invoked a May 2019 order by the Supreme Court (Abdul Kuddus versus the Union of India) to arrive at its judgment. It also cleared the air on a 2018 order (Amina Khatoon versus the State of Assam) by the same court, which had adjudicated that the principle of res judicata did not apply to the foreigners’ tribunals since they were only quasi-judicial bodies and not full-fledged courts.

The Gauhati High Court, in its latest court, however, found the 2018 judgment to be “no more a good law” and “as such, cannot be relied upon anymore”.

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 the 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 union government delegated this power to the Superintendents of Police while continuing to handle deportations.

The court said, “In the present proceeding, the Tribunal has to first determine whether the petitioner is the same person who was proceeded in the earlier proceeding. Thus, the scope of is confined only to the issue of whether the petitioner is the same person who had proceeded earlier or not.” Once the person’s identity was established to be the same, it was not required for the tribunals to deliberate on the evidence all over again, the court said.

Last year, in December 2021, the Gauhati High Court had set aside an order passed by a Foreigners’ Tribunal that had declared a resident of District Darrang in Assam as a foreigner after noting that the same tribunal had earlier declared her to be an Indian citizen. It had cited the principle of res judicata even then.

Res judicata or res iudicata, also known as claim preclusion, is the Latin term for “a matter decided” and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) relitigation of a claim between the same parties.

In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.

The doctrine of res judicata is a method of preventing injustice to the parties of a case supposedly finished but perhaps also or mostly a way of avoiding unnecessary waste of judicial resources. Res judicata does not merely prevent judgments from contradicting earlier ones but also prevents litigants from multiplying judgments, and confusion.

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