Abdul Kuddus vs Union Of India

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5012 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 23127 OF 2018)

ABDUL KUDDUS ….. APPELLANT(S)

VERSUS

UNION OF INDIA AND OTHERS ….. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 5025 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. _13011 OF 2019 ARISING OUT OF DIARY NO. 25095 OF 2017)

CIVIL APPEAL NO. 5026 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. __13012 OF 2019 ARISING OUT OF DIARY NO. 25101 OF 2017)

CIVIL APPEAL NO. 5013 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 25052 OF 2017)

CIVIL APPEAL NO. 5014 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 2512 OF 2018)

CIVIL APPEAL NO. 5015 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 5342 OF 2018)

CIVIL APPEAL NO. 5024 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. _13010 OF 2019 ARISING OUT OF DIARY NO. 26459 OF 2018)

CIVIL APPEAL NO. 5016 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26935 OF 2018)

CIVIL APPEAL NO. 5017 OF 2019 Signature Not Verified

Digitally signed by CHARANJEET KAUR Date: 2019.05.20 13:17:53 IST (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 3774 OF 2019) Reason:

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 1 of 27 CIVIL APPEAL NO. 5021 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 13007 OF 2019 ARISING OUT OF DIARY NO. 1191 OF 2019)

CIVIL APPEAL NO. 5023 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. _13009 OF 2019 ARISING OUT OF DIARY NO. 4112 OF 2019)

CIVIL APPEAL NO. 5018 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 4704 OF 2019)

CIVIL APPEAL NO. 5022 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. _13008 OF 2019 ARISING OUT OF DIARY NO. 5071 OF 2019)

CRIMINAL APPEAL NO. 910 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 2058 OF 2019)

CIVIL APPEAL NO. 5019 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 5367 OF 2019)

WITH

CIVIL APPEAL NO. 5020 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 6570 OF 2019)

ORDER

SANJIV KHANNA, J.

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 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 2 of 27 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.

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.

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 3 of 27

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,―

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 4 of 27

(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

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 5 of 27 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.

(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.”

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 6 of 27 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 24 th

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 24 th 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.

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 7 of 27

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 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 24 th 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.

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 8 of 27 (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;

(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

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 9 of 27 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 24 th day of March,

1971 or has shifted from one district to another within the State of

Assam upto the midnight of the 24 th 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 been

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 10 of 27 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

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 11 of 27 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.”

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 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 12 of 27 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

1 (2005) 5 SCC 665 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 13 of 27 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:

“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.”

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 14 of 27 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

2 (2007) 1 SCC 174 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 15 of 27 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 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.”

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 16 of 27

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:

“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.

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 17 of 27 (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.

(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

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 18 of 27 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 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 19 of 27 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, 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 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 20 of 27 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

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 21 of 27 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

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

3 (2002) 5 SCC 685 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 22 of 27 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 Chaturvedi 5, 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

4 AIR 1962 SC 1621 5 (2002) 6 SCC 635 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 23 of 27 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,

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 6 (2007) 2 SCC 181 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 24 of 27 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 passed in case of close Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 25 of 27 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.

Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 26 of 27

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.

......................................CJI (RANJAN GOGOI)

......................................J. (DEEPAK GUPTA)

......................................J. (SANJIV KHANNA) NEW DELHI;

MAY 17, 2019.

7 (2002) 4 SCC 578 8 (2014) 11 SCC 477 Civil Appeal arising out of SLP (C) No. 23127 of 2018 Page 27 of 27