SC: An order of Foreign Tribunal is quasi-judicial, not an administrative one

The Hon’ble Supreme Court of India, on 17th May 2019, in the matter of Abdul Kuddus v. Union of India And Others pronounced that persons who have been declared to be illegal migrants or foreigners by the Competent Authority under Foreigners (Tribunal) Order, 1964 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.

The Hon’ble Supreme Court observed that:

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 of the Schedule to the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003. 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. (Para 10)

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. (Para 10)

Consolidated list, Additional list, Draft list published under paragraph 2 of the schedule 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. (This inference has been drawn on the basis of Para 11)

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. (Para 18)

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 Foreigners (Tribunal) Order, 1964. (Para 18)

The opinion by the Foreigners Tribunal is a quasi-judicial order and not an administrative order. (Para 19)

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. (Para 19)

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 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. (Para 20 and 22)

Opinion of the Foreigners Tribunal and/or the consequential order passed by the Registering Authority would 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 inference has been drawn on the basis of Para 20)

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. (Para 24)

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. (Para 24)

Copy of judgement: Judgement_17-May-2019

-Tushar Kaushik

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