ABDUL KUDDUS versus UNION OF INDIA AND OTHERS
[2019] 8 S.C.R. 669, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Issues
A
B
C
D
E
F
G
H
669
ABDUL KUDDUS
v.
UNION OF INDIA AND OTHERS
(Civil Appeal No. 5012 of 2019)
MAY 17, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
SANJIV KHANNA, JJ.]
Citizenship (Registration of Citizens and Issue of National
Identity Cards) Rules, 2003: Schedule, Paragraph 3(2) and
Paragraph 8 – Conflict between – Citizenship status of persons in
the State of Assam – Adjudication of – Held: Paragraph 3(2) deals
with separate class of persons who have been declared as illegal
migrant or foreigners by the Competent Authority – Such persons
cannot be included in the National Register of Citizens – Such
persons cannot claim citizenship of India on the basis that he/she
has been residing in the State of Assam – Whereas Paragraph 8
provides for a right of appeal to the person who had filed objections
and is not satisfied with the outcome of the decision under the final
list published under paragraph 7 – Such persons may prefer an
appeal before the designated Tribunal constituted under the 1964
Order within a period of sixty days and on disposal of appeal by
the Tribunal, such persons can accordingly be included or deleted
from the NRC in the State of Assam – Thus, the provisions of
paragraph 8 would apply when there has not been an earlier
adjudication and decision by the Foreigners Tribunal –
Furthermore, paragraph 8 does not envisage and provide for a
second round of litigation before the same authority-Foreigners
Tribunal on and after preparation of the final list –
Opinion/order
of the Tribunal, or the order passed by the Registering Authority
based upon the opinion of the Foreigners Tribunal, can be
challenged by way of writ proceedings – Opinion of the Foreigners
Tribunal and/or the consequential order passed by the Registering
Authority would operate as res judicata – Citizenship Act, 1955 –
Foreigners Act, 1946 – Foreigners (Tribunal) Order, 1964.
   [2019] 8 S.C.R. 669
669
A
B
C
D
E
F
G
H
670
SUPREME COURT REPORTS
[2019] 8 S.C.R.
Constitution of India: Art. 142 – Exercise of power under –
Creation of an appellate forum for deciding disputes regarding the
citizenship status of persons residing in the State of Assam – Held:
No such direction can be given for creation of an appellate forum
and entrench upon the field of legislation reserved for legislature.
Sarbananda Sonowal v. Union of India & Anr. (2005)
5 SCC 665 : [2005] 1 Suppl. SCR 472 ; Sarbananda
Sonowal (11) v. Union of India & Anr. (2007) 1 SCC
174 : [2006] 10 Suppl. SCR 167 ; Indian National
Congress (1) v. Institute of Social Welfare & Ors. (2002)
5 SCC 685 : [2002] 3 SCR 1040 ; Shrimati Ujjambai
v. State of Uttar Pradesh & Anr. AIR 1962 SC 1621 ;
Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi (2002)
6 SCC 635 : [2002]  1 Suppl.  SCR 469 ; Rajesh Kumar
& Ors. v. DY. CIT & Ors. (2007) 2 SCC 181 : [2006] 8
Suppl. SCR 284 ; P. Ramachandra Rao v. State of
Karnataka (2002) 4 SCC 578 ; Pravasi Bhalai
Sangathan v. Union of India (2014) 11 SCC 477 :
[2014] 4 SCR 446  – referred to.
Case Law Reference
[2005] 1 Suppl. SCR 472
referred to
Para 13
[2006] 10 Suppl. SCR 167
referred to
Para 14
[2002] 3 SCR 1040
referred to
Para 19
AIR 1962 SC 1621
referred to
Para 20
[2002] 1 Suppl. SCR 469
referred to
Para 20
[2006] 8 Suppl. SCR 284
referred to
Para 20
(2002) 4 SCC 578
referred to
Para 25
[2014] 4 SCR 446
referred to
Para 25
CIVIL/CRIMINAL APPELLATE JURISDICTION : Civil
Appeal No. 5012 of 2019.
From the Judgment and Order dated 07.05.2018 of the Gauhati
High Court at Guwahati in Writ Petition (C) No. 1073 of 2016.
With C. A. Nos. 5025, 5026, 5013, 5014, 5015, 5024, 5016, 5017,
5021, 5023, 5018, 5022, 5019 and 5020 of 2019
A
B
C
D
E
F
G
H
671
Crl A. No. 910 of 2019
Kapil Sibal, Salman Khurshid, Sanjay R. Hegde, Sr. Advs., Fuzail
Ahmad Ayyubi, Nizam Pasha, Ibad Mushtaq, Ms. Aditi Gupta,
Ms. Tehsheena Z. Hussain, Ms. Lubna Naz, Ms. Kunika,
Ms. Lalrotluangi, Abhishek Sarkar, Ms. Heena Khana, Avijit Roy, Anas
Tanwir, Ms. Pranjal Kishore, Ms. Kamakshi S. Mehlwal, Mrigank
Prabhakar, A. S. Tapadar, Ms. Sakshi Banga, Pijush K. Roy, Mrs. Kakali
Roy, Rajan K. Chourasia, Kaushik Choudhury, Advs. for the Appellants.
Tushar Mehta, SG, Ms. Madhavi Divan, A. N. S. Nadkarni, ASG,
Shuvodeep Roy, Rajat Nair, Rijuk Sarkar, Ms. Aishwarya Bhati, Rajat
Nair, S. Deshmukh, B. V. Balaram Das, Avijit Roy, Advs. for the
Respondents.
The following Order of the Court was passed
O R D E R
SANJIV KHANNA, J.
1. Delay condoned. Leave granted.
2. This 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” for short). We shall also examine the alternative
argument and suggestion of the appellants that 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.
3. Articles 5 to 9 of the Constitution delineate and determine persons
who are citizens of India on
commencement of the Constitution.  Article
10 provides for their continuance as citizens subject to the provisions of
any law that may be made by the Parliament. Article 11 of the
Constitution, expressly confers power on the Parliament to make laws
with respect to acquisition and termination of citizenship and all matters
relating to citizenship.  To achieve and with this objective, the Parliament
has enacted the Citizenship Act, 1955 (“the Citizenship Act” for short)
which provides for acquisition of citizenship after the commencement of
the Constitution by birth, registration, naturalisation and incorporation of
territory.
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
A
B
C
D
E
F
G
H
672
SUPREME COURT REPORTS
[2019] 8 S.C.R.
4. Section 14A of the Citizenship Act states that the Central
Government may compulsorily register every citizen of India and issue
national identity card to him/her.  The Central Government may maintain
a National Register of Indian Citizens and can establish a National
Registration Authority for this purpose. Procedure to be followed for
compulsory registration of citizens shall be such as may be prescribed.
5. Section 6A of the Citizenship Act incorporates special provisions
as to the citizenship of persons covered by the Assam Accord.  For the
purpose of the present order, we would like to reproduce sub-section (3)
to Section 6A of the Citizenship Act which reads as under:
“6A. Special provisions as to citizenship of persons covered
by the Assam Accord. ¯
(3) Subject to the provisions of sub-sections (6) and (7), every
person of Indian origin who¯
(a) came to Assam on or after the 1st day of January, 1966 but
before the 25th day of March, 1971 from the specified territory;
and
(b) has, since the date of his entry into Assam, been ordinarily
resident in Assam; and
(c) has been detected to be a foreigner,
shall register himself in accordance with the rules made by the
Central Government in this behalf under section 18 with such
authority (hereafter in this sub-section referred to as the registering
authority) as may be specified in such rules and if his name is
included in any electoral roll for any Assembly or
Parliamentary
constituency in force on the date of such detection, his name shall
be deleted therefrom.
Explanation.¯In the case of every person seeking registration under
this sub-section, the opinion of the Tribunal constituted under the
Foreigners (Tribunals) Order, 1964 holding such person to be a
foreigner, shall be deemed to be sufficient proof of the requirement
under clause (c) of this subsection and if any question arises as to
whether such person complies with any other requirement under
this sub-section, the registering authority shall,¯
A
B
C
D
E
F
G
H
673
(i)  if such opinion contains a finding with respect to such other
requirement, decide the question in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such
other requirement, refer the question to a Tribunal constituted under
the said Order having jurisdiction in accordance with such rules
as the Central Government may make in this behalf under section
18 and decide the question in conformity with the opinion received
on such reference.”
Sub-Section (3) to Section 6A states that subject to the provisions
of sub-section (6) and (7), all persons who have come to Assam on or
after the 1st day of January, 1966 but before 25th March, 1971 from
specified territory and from the date of entry have been ordinary resident
of Assam and have been detected to be foreigners shall register
themselves with the Registering Authority in accordance with Rules
made by the Central Government.  If name of any such person has
been included in the electoral rolls of any Assembly or Parliamentary
constituency, the same shall be deleted therefrom.  Explanation to Section
6A (3) states that the opinion of the Tribunal under the Foreigners
(Tribunal) Order, 1964 (“the 1964 Order” for short) that the person was
a foreigner shall be deemed sufficient for the requirement of sub-section
(3).  The opinion of the Tribunal is also binding with respect to any other
requirement of sub-Section (3) to Section 6A of the Citizenship Act.
The
Registering Authority is required to refer the matter to the Tribunal
constituted under the said Order if the earlier opinion of the Tribunal on
other requirements is silent. Thereupon, the question is decided by the
Registering Authority in conformity with the opinion received from the
Tribunal.
6. Before we advert to the 1964 Order, we would like to refer to
Rule 4A and the Schedule to the 2003 Rules which was inserted by
G.S.R 803 (E) dated 9th November, 2009, as a special provision relating
to National Register of Indian Citizens in the State of Assam.  Rule 4A
of the 2003 Rules reads as under:
“4A. Special provisions as to National Register of Indian
Citizens in the State of Assam— (1) Nothing in rule 4 shall, on
and after the commencement of the Citizenship (Registration of
Citizenship and Issue of National Identity Cards) Amendment
Rules, 2009, apply to the State of Assam.
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
674
SUPREME COURT REPORTS
[2019] 8 S.C.R.
(2) The Central Government shall, for the purpose, of the National
Register of Indian Citizens in the State. of Assam, cause to carry
out throughout the State of Assam for preparation of the National
Register of Indian Citizens in the State of Assam by inviting
applications from all the residents, for collection of specified
particulars relating to each family and individual, residing in a local
area in the State including the citizenship status based on the
National Register of Citizens 1951, and the electoral rolls upto the
midnight of the 24th day of March, 1971.
(3) The Registrar General of Citizens Registration shall notify the
period and duration of the enumeration in the Official Gazette.
(4) The manner of preparation of the National Register of Indian
Citizens in the State of Assam shall be such as specified in the
Schedule appended to these rules.”
Sub-rule (2) of Rule 4A states that the Central Government for
the purpose of preparation of the National Register of Indian Citizens in
the State of Assam shall invite applications from all residents for collection
of specified particulars relating to each family and individual residing in
the local area in the State including the citizens’ status based upon the
National Register of Citizens, 1951 and the electoral rolls upto the midnight
of 24th March, 1971.  The manner of preparation of the National Register
of Indian Citizens in the State of Assam shall be such
as specified in the
Schedule to the 2003 Rules.
7. We are not reproducing the entire Schedule but would like to
refer to paragraph 2 of the Schedule which prescribes the mandate to
prepare and specifies the manner of preparation of the draft National
Register of Indian Citizens in the State of Assam on the basis of the
National Register of Citizens, 1951 and electoral rolls upto the midnight
of 24th March, 1971.  The list so prepared has to be published and made
available to the Local Registrar of Indian Citizens for wide circulation
and public inspection in every village and ward.  The Local Registrar of
Indian Citizens are mandated to receive application forms and issue
receipt to the applicants.
8. Sub-para (3) to paragraph 2 of the Schedule to the 2003 Rules
reads as under:
“The Local Registrar of Citizen Registration, after the receipt of
the application under sub-paragraph (2) shall scrutinize the
A
B
C
D
E
F
G
H
675
applications and after its verification, prepare a consolidated list
thereof which shall contain the names of the following persons,
namely:
persons whose names appear in any of the electoral rolls upto the
midnight of the 24th day of March, 1971 or in the National Register
of Citizens, 1951;
descendants of the persons mentioned in clause (a) above.”
This sub-para states that the Local Registrar, after receipt of the
application from citizens in terms of sub-para (2), has to scrutinize them
and after verification prepare a consolidated list including the names of
the persons whose names had appeared in any of the electoral rolls upto
the midnight of 24th March,1971 or in the National Register of Citizens,
1951 and the descendants of such persons.
9. Paragraph 3 of the Schedule to the 2003 Rules reads as under:
“3. Scrutiny of applications— (1) The scrutiny of applications
received under sub-paragraph (3) of paragraph 2 shall be made
by comparing the information stated in the application form with
the official records and the persons, of whom the information is
found in order, shall be eligible for inclusion of their names in the
consolidated list.
(2) the names of persons who have been declared as illegal migrants
or foreigners by the competent authority shall not be included in
the consolidated list:
Provided that the names of persons who came in the State of
Assam after 1966 and before the 25th March, 1971 and registered
themselves with the Foreigner
Registration Regional Officer and
who have not been declared as illegal migrants or foreigners by
the competent authority shall be eligible to be included in the
consolidated list;
(3) the names of persons who are originally inhabitants of the
State of Assam and their children and descendants, who are
Citizens of India, shall be included in the consolidated list if the
citizenship of such persons is ascertained beyond reasonable doubt
and to the satisfaction of the registering authority;
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
676
SUPREME COURT REPORTS
[2019] 8 S.C.R.
(4)  the Local Registrar of Citizens Registration may, in case of
any doubt in respect of parental linkage or any particular mentioned
in the application received under sub-paragraph (3) of paragraph
2, refer the matter to the District Magistrate for investigation and
his decision and Local Registrar of Citizens Registration shall also
inform the same to the individual or the family;
(5)  the Local Registrar of Citizens Registration may, in respect
of a person who—
(a) was residing in a place other than the State of Assam upto the
midnight of the 24th day of March, 1971; or
(b) has shifted from one district to another within the State of
Assam upto the midnight of the 24th day of March, 1971.
verify information relating to such person through inter-State
correspondence, or, as the case may be, through inter-district
correspondence.”
Paragraph 3 deals with the preparation of consolidated list of
original inhabitants of Assam, their children and descendants if their
citizenship is ascertained beyond reasonable doubt and to the satisfaction
of the Registering Authority.  As per Sub-para (4) in case of any doubt
during scrutiny in respect of parental linkage or any particular mentioned
in the application received under sub-para (2) of paragraph 2, the Local
Registrar of citizens is required to refer the matter to the District
Magistrate for investigation and decision by him. The Local Registrar is
required to inform about
any such directions to the individual or his family.
Sub-para (5) to paragraph 3 deals with investigation to be made by the
Local Registrar in respect of persons who are residing in a place other
than the State of Assam upto the midnight of the 24th day of March,
1971 or has shifted from one district to another within the State of Assam
upto the midnight of the 24th day of March, 1971. Sub-para (2) to
paragraph 3 of the Schedule deals with a separate class or cases of
persons who have been declared as illegal migrants or foreigners by the
Competent Authority. Sub-para (2) mandates that the illegal migrants or
foreigners so declared by the Competent Authority shall not be included
in the consolidated list.  Proviso applies to persons who had come to the
State of Assam after 1966 but before 25th March, 1971 and had registered
themselves with the Foreigner Registration Regional Office and had not
A
B
C
D
E
F
G
H
677
been declared as illegal migrants or foreigners by the Competent Authority.
They are eligible to be included in the consolidated list.
10. It is obvious to us that the persons covered by sub-para (2) to
paragraph 3 of the Schedule i.e. persons who have been declared to be
illegal migrants or foreigners by the Competent Authority fall in a separate
and distinct class and in such cases, no enquiry or investigation is required
to be conducted in terms of sub-paragraph 4. Such persons cannot, in
terms of the specific language used in sub-para (2) to paragraph 3 of the
Schedule, be included in the National Register of Citizens. The reason
as is evident is that their citizenship status has already been determined
by the Competent Authority. A person once declared an illegal migrant
or a foreigner cannot claim or put forth a claim to the citizenship of India
on the basis that he/she has been residing in the State of Assam.
11. We are not referring to paragraphs 4 to 7 of the Schedule
which deal  with the publication of the consolidated list, additional list,
claims and objections by a person whose name does not appear in the
draft list published under paragraph 2 or additional list or objections by a
third person for inclusion of a name in the draft list or the additional list.
We would, however, reiterate that the said list(s) would not include name
of the persons who have been declared illegal migrants or foreigners by
the Competent Authority in terms of
sub-para (2) to paragraph 3 of the
Schedule. In other cases, i.e. cases not covered by sub-para (2) to
paragraph 3, the Local Registrar after considering the objections and
claims has to prepare a supplementary list to be published under paragraph
7 of the Schedule for inclusion and deletion of names, as the case may
be, and thereafter, a final list of National Citizens in the State of Assam.
12. This brings us to paragraph 8 of the Schedule to the 2003
Rules which reads as under:
“8.  Appeal- Any person, not satisfied with the outcome of the
decisions of the claims and objections under paragraph 7, may
prefer appeal, before the designated Tribunal constituted under
the Foreigners (Tribunals) Order, 1964 within a period of sixty
days from the date of such order; and on the disposal of appeal by
the Tribunals the names shall be included or deleted, as the case
may be, in the National Register of Indian  Citizens in the State of
Assam.”
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
678
SUPREME COURT REPORTS
[2019] 8 S.C.R.
Paragraph 8 provides for a right of appeal to the person who had
filed objections and is not satisfied with the outcome of the decision
under the final list published under paragraph 7.  Such persons may
prefer an appeal before the designated Tribunal constituted under the
1964 Order within a period of sixty days and on disposal of appeal by the
Tribunal, such persons can accordingly be included or deleted from the
National Register of Indian Citizens in the State of Assam. Paragraph 8,
therefore, makes the Foreigners Tribunal under the 1964 Order as the
appellate forum to decide claims and objections under paragraph 7 of
the Schedule.
13. The 1964 Order has been issued in exercise of power under
Section 3 of the Foreigners Act, 1946 (“the Foreigners Act” for short).
The Tribunals under the 1964 Order have the power to decide whether
the person is a foreigner or not within the meaning of the Foreigners
Act.  The 1964 Order before its amendment in 2012 was examined by
this Court in Sarbananda Sonowal vs. Union of India & Anr.1
(“Sarbananda Sonowal (I)” for short), wherein it was held that the
procedure prescribed for the Tribunals constituted under the 1964 Order
was just, fair and reasonable. This reasoning formed the basis to strike
down provisions of the Illegal Migrants (Determination of Tribunals Act,
1983) (“the IMDT Act” for short) as ultra vires the Constitution of India,
primarily on the ground that the
offending Act did not contain any provision
similar to Section 9 of the Foreigners Act which stipulates that the burden
of proof as to whether any person is or is not a foreigner lies upon the
said person notwithstanding anything contained in the Indian Evidence
Act, 1872.  Referring to the factual data reflecting discernible illegal
migration threatening the demographic structure of the area, resultant
outbreak of insurgency in Assam and other concomitant dimensions that
had greatly undermined the national security,  duty of the Union
Government under Article 355 of the Constitution to protect the State
against external aggression and internal disturbance, it was held that the
word “aggression” is a word of very wide import and would include
influx of foreigners who had illegally migrated. Reference was also made
to the Memorandum of Settlement between the Government of India
and All India Students Union and the State of Assam. In paragraph 33 in
Sarbananda Sonowal (I) acknowledging the role of the Tribunals
constituted under the 1964 Order, it was observed:
1 (2005) 5 SCC 665
A
B
C
D
E
F
G
H
679
“33. Clause (b) of sub-Section 6-A(1) of the Citizenship Act, 1955
defines “detected to be a foreigner” and it means detected to be
a foreigner in accordance with the provisions of the Foreigners
Act, 1946 and the Foreigners (Tribunals) Order 1964 by a Tribunal
constituted under the said Order. Similarly, the explanation
appended to Section 6-A (2) also refers to the “opinion of the
Tribunal constituted under the Foreigners (Tribunals) Order, 1964
holding such person to be a foreigner”. These provisions mandate
the establishment and functioning of a Tribunal constituted under
the Foreigners (Tribunals) Order, 1964 in the State of Assam.
The learned Additional Solicitor General and Shri K.K. Venugopal,
learned senior counsel for the State of Assam have made a
statement that such Tribunals are actually functioning in the State
of Assam.”
Thus, the IMDT Act was struck down as it did not have a provision
similar to Section 9 of the Foreigners Act regarding the burden of proof
observing that it would be difficult for the State to give an exact date of
entry of  a foreign national who had surreptitiously crossed the Indian
national border and that the court cannot be remain a quiet spectator to
the continuing influx of illegal migrants. A Bench of 3 Judges did not
hesitate to observe that the IMDT Act which had been constituted for
the detection and deportation of illegal migrants having entered into India
on or after 25th March, 1971 had designedly failed in
its purpose.
14. Subsequently, this Court in Sarbananda Sonowal (II) vs.
Union of India2 (“Sarbananda Sonowal (II)” for short) had struck
down the Foreigners (Tribunals) Amendment Order 2006 inter alia for
several reasons including those mentioned and which had found favour
in Sarbananda Sonowal (I).  The amendment Order in distinction to
the 1964 Order had required the Tribunal to first consider whether there
were sufficient grounds for proceeding and only on the Tribunal being
satisfied that the basic facts are prima facie established that the notice
could be issued to a person suspected of being an illegal migrant. The
Division Bench in Sarbananda Sonowal (II) was pleased to observe in
paragraphs 64 and 65 as under:
“64.  In the face of the clear directions issued in Sonowal I, it was
for the authority concerned to strengthen the Tribunals under the
2 (2007) 1 SCC 174
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
680
SUPREME COURT REPORTS
[2019] 8 S.C.R.
1964 Order and to make them work. Instead of doing so, the 2006
Order has been promulgated. It is not as if the respondents have
found the 1964 Order unworkable in the State of Assam; they
have simply refused to enforce that Order in spite of directions in
that behalf by this Court. It is not for us to speculate on the reasons
for this attitude. The earlier decision in Sonowal, has referred to
the relevant materials showing that such uncontrolled immigration
into the North- Eastern States posed a threat to the integrity of
the nation. What was therefore called for was a strict
implementation of the directions of this Court earlier issued in
Sonowal I, so as to ensure that illegal immigrants are sent out of
the country, while in spite of lapse of time, the Tribunals under the
1964 Order had not been strengthened as directed in Sonowal I.
Why it was not so done, has not been made clear by the Central
Government. We have to once again lament with Sonowal I that
there is a lack of will in the matter of ensuring that illegal immigrants
are sent out of the country.
65. It appears that the 2006 Order has been issued just as a cover
up for non-implementation of the directions of this Court issued in
Sonowal I. The Order of 2006, in our view, is clearly unnecessary
in the light of the 1946 Act and the Orders made thereunder and
the directions issued in Sonowal I. It does not serve the purpose
sought to be achieved by the 1946
Act or the Citizenship Act and
the obligations cast on the Central Government to protect the nation
in terms of Article 355 of the Constitution of India highlighted in
Sonowal. We have also earlier struck down the repeal of the 1964
Order as regards Assam. The 2006 Order is therefore found to
be unreasonable and issued in an arbitrary exercise of power. It
requires to be quashed or declared invalid.”
15. We have referred to the two decisions in Sarbananda Sonowal
(I) and (II) to indicate and show that the issues and arguments raised
before us and noticed below have already been substantially examined
and dealt with and rejected earlier.
16. The aforesaid judgments had referred to the 1964 Order prior
to its amendment vide Foreigners (Tribunal) Amendment Order, 2012.
In order to appreciate the contentions raised by the appellants, we would
like to first reproduce Paragraph 3 of the amended 1964 Order, which
reads as under:
A
B
C
D
E
F
G
H
681
“3. Procedure for disposal of question:
(1) The Tribunal shall serve on the person to whom the question
relates a show cause notice with a copy of the main grounds on
which he or she is alleged to be a foreigner.  This notice should be
served as expeditiously as possible and in any case, not later than
ten days of the receipt of the reference of such question by the
Central Government of any competent authority.
(2) The Tribunal shall give him or her a reasonable opportunity to
show cause by filing a representation.  Ordinarily, not more than
ten days’ time from the date of service of the notice as aforesaid
should be given to file such a representation.
(3) The Tribunal shall give him or her a reasonable opportunity to
produce evidence in support of his or her case.  Ordinarily, not
more than ten days’ time should be given to produce such evidence.
(4) A prayer for examination of witnesses in Court or a Commission
for production of documents shall be refused if, in the opinion of
the Tribunal, such prayer is made for the purpose of vexation or
delay or similar purpose.
(5) The Tribunal shall take such evidence as may be produced by
the Superintendent of Police concerned.
(6) The Tribunal shall hear such persons as, in its opinion, are
required to be heard.
(7) A party to the proceeding may be allowed to appear before
the Tribunal either in person or through a legal practitioner or
such person or relation authorized by him in writing as the Tribunal
may
admit as a fit person to represent the party.
(8) The power of granting adjournment or any plea should be
very sparingly exercised.
(9) After the case has been heard, the Tribunal shall submit its
opinion as soon thereafter as may be practicable, to the officer or
the authority specified in this behalf in the order of reference.
Every case should be disposed of within a period of 60 days after
the receipt of the reference from the competent authority.
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
682
SUPREME COURT REPORTS
[2019] 8 S.C.R.
(10) The Tribunal’s final order containing its opinion on the question
referred to need not be a detailed order as it is not a judgment; a
concise statement of facts and the conclusion will suffice.
(11)  Subject to the provisions of this order, the Tribunal shall have
the power to regulate its own procedure for disposal of the cases
expeditiously in a time bound manner.”
17. Referring to the above amended provisions, 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. Summary opinion of the Foreigners Tribunal, it
is submitted, is not a detailed order and hence, is not a decision or
judgment.  Based on the said submission, it is argued that the opinion
formed by the Foreigners Tribunal is not an order of the Competent
Authority for the purposes of sub-para (2) to paragraph 3 of the Schedule
to the 2003 Rules.  Further, the opinion formed by the Foreigners Tribunal
being an executive order would not operate as res judicata.  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.
18. We have examined the contentions and have no hesitation in
holding that they have no force. 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.
Pertinently, the Rules framed under the Citizenship Act are subordinate
legislation.  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.  Indeed, the learned counsel for the appellants did not
make any attempt to point out and highlight that there could be any other
authority covered by the expression ‘Competent Authority’ or which
would qualify and can be treated as a Competent Authority referred to
in sub-para (2) to Paragraph 3 of the Schedule to the 2003 Rules.
Paragraph 3 of the amended 1964 Order uses the expression ‘Competent
Authority’ as is also used in sub-para (2) to paragraph 3 of the Schedule,
A
B
C
D
E
F
G
H
683
albeit in a different context as a competent authority that makes
reference to the Tribunal in terms of Paragraph 3.  On receipt of such
reference, the Tribunal has to submit its opinion/decision, which opinion/
decision in terms of Explanation to Section 6A of the Citizenship Act is
final and binding.  Decisions of the Tribunal have been given primacy.
Thus, the Competent Authority referred to in sub-para (2) to paragraph
3 of the Schedule would be, without a doubt, the Tribunal constituted
under the Foreigners Act i.e. the 1964 Order.
19. The procedure prescribed by the post 2012 amendment under
the 1964 Order mandates compliance with the principles of natural justice.
All the allegations and grounds are required to be served by the Tribunal
in the form of a show cause notice to the person who is alleged to be a
foreigner [see paragraph 60 in Sarbananda Sonowal (II) (supra)].
Thereupon, the person has to be given a reasonable opportunity to file
representation and also produce evidence. The Tribunal has been
authorised to consider and allow prayer for production and examination
of the witnesses which can be refused if found to be vexatious, or made
with the intent to cause delay, etc. The evidence produced by the
Superintendent of Police can also be recorded.  The person concerned
has to be heard before the Tribunal gives its opinion. The person concerned
may appear in person or can be represented by a legal practitioner or an
authorised representative.
Opinion is to be given within a period of sixty
days after the reference from the competent authority. No doubt, the
Rules do not prescribe and require an opinion of the Tribunal to be a
detailed judgment, nevertheless, it is obvious that the opinion rendered
must state the facts and reasons for drawing the conclusions.  It is a
decision and an order. Fixing time limits and recording of an order rather
than detailed judgment is to ensure that these cases are disposed of
expeditiously and in a time bound manner. The opinion by the Foreigners
Tribunal is a quasi-judicial order and not an administrative order. The
expression ‘quasi-judicial order’ means a verdict in writing which
determines and decides contesting issues and question by a forum other
than a court. The determination has civil consequences.  Explaining the
meaning of quasi-judicial body in Indian National Congress (I) vs.
Institute of Social Welfare & Ors.3, it was held that when any body of
persons has a legal authority to determine questions affecting the rights
of subjects and a duty to act judicially, such body of persons constitute a
3 (2002) 5 SCC 685
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
684
SUPREME COURT REPORTS
[2019] 8 S.C.R.
quasi-judicial body and decision given by them is a quasi-judicial decision.
It would also be a quasi-judicial order if the statute empowers an authority
to decide the lis not between the two contesting parties but also when
the decision prejudicially affects the subject as against the authority,
provided that the authority is required by the statute to act judicially.
Further, what differentiates an administrative act from the quasi-judicial
act is that a quasi-judicial body is required to make an enquiry before
arriving at a conclusion. In addition, an administrative authority is the
one which is dictated by policy and expediency whereas a quasi-judicial
authority is required to act according to the rules.
20. 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.  This
court in Shrimati Ujjambai vs. State of Uttar
Pradesh & Anr.4 has held that the principles of res judicata equally
apply to quasi-judicial bodies. Whenever a judicial or quasi-judicial Tribunal
gives a finding on law or fact, its findings cannot be impeached collaterally
or in a second round and are binding until reversed in appeal or by way
of writ proceedings. The characteristic attribute of a judicial act or
decision is that it binds, whether right or wrong. Thus, any error, either
of fact or law, committed by such bodies cannot be controverted otherwise
by way of an appeal or a writ unless the erroneous determination relates
to the jurisdictional matter of that body. In Dr. J.J. Merchant & Ors.
vs. Shrinath Chaturvedi5, when the learned counsel had pleaded that
the National Consumer Disputes Redressal Commission cannot examine
complicated questions of facts which require examination and cross-
examination of experts including doctors and that the procedure followed
for determination of consumer disputes being summary in nature is not
suitable for determination of complicated questions, this court rejected
these contentions and held that under the Consumer Protection Act,
4 AIR 1962 SC 1621
5 (2002) 6 SCC 635
A
B
C
D
E
F
G
H
685
1986, for a summary trial, an exhaustive procedure conforming to the
principles of natural justice is provided. Merely because the trial is
summary in nature cannot be a ground to reject it as unjust or unfair.
Further, it was held in Rajesh Kumar & Ors. vs. DY. CIT & Ors.6 that
when civil or evil consequences ensue by reason of an act done by the
statutory authority, principles of natural justice must be followed. The
Act and power of judicial review vested with the constitutional courts
provide sufficient safeguards, in the present context.
21. When we apply general principles of res-judicata, the
contention of the appellants that the 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.
22. As stated above, 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.
23. It
was highlighted 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. 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
6 (2007) 2 SCC 181
ABDUL KUDDUS v. UNION OF INDIA AND OTHERS
[SANJIV KHANNA, J.]
A
B
C
D
E
F
G
H
686
SUPREME COURT REPORTS
[2019] 8 S.C.R.
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.
24. In view of the aforesaid findings, it has to be held that
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.
25. Alternative submission that this court should create an appellate
forum has not been pressed in
the written submissions and arguments.
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 [See P.
Ramachandra Rao vs. State of Karnataka7 and Pravasi Bhalai
Sangathan vs. Union of India8].
26. With the aforesaid observations, we dispose of the appeals
and reject the contention of the appellants on the perceived conflict
pertaining to the adjudication on the citizenship status of persons. We
also reject the contention that this Court should direct the creation of an
appellate forum.
7 (2002) 4 SCC 578
8 (2014) 11 SCC 477
Nidhi Jain
Appeals disposed of.