Once Declared Indian, A Person Cannot Later Be Declared A Foreigner Says Gauhati HC

Once declared an Indian, a person cannot later be declared a foreigner rules the Gauhati High Court. The high court’s current observations are especially significant in light of several accounts of individuals being certified citizens by Foreigner’s Tribunal only to be detained by police later.

Once Declared Indian, A Person Cannot Later Be Declared A Foreigner: Gauhati HC 1

According to NDTV, once an individual has been proclaimed a citizen of India by a Foreigners’ Tribunal (FT), that individual cannot be pronounced a non-Indian if they are taken before the tribunal for a second time.

A bench of Justices N. Kotiswar Singh and Nani Tagia observed that the FT’s judgment on citizenship will be governed by the rule of res judicata, which states that a case that has been resolved by a proper court cannot be heard by the very same parties.

The bench reached its decision while considering a group of cases in which the petitioners had previously been deemed Indian nationals but were later pronounced foreigners in subsequent procedures.

Two previous cases

During the hearing of the petitions, the high court referred to two previous decisions on the issue of the applicability of res judicata to procedures before tribunals, notably FTs.

First, the bench cited the Gauhati High Court’s earlier decision in the matter of Amina Khatoon versus Union of India (2018), which concluded that res judicata would not extend to FT proceedings because FTs are not courts and hence cannot be regarded judicial processes.

The court, however, stated that this decision was “not good in law” because the Supreme Court had already expressed an opposite judgment in the case of Abdul Kuddus v. Union of India (2019). The Supreme Court ruled in the Kuddus case that the idea of res judicata applies even to quasi-judicial entities.

As a result, the Supreme Court stated that an FT judgment in favor of a person deciding citizenship is binding on subsequent processes and that another proceeding to re-determine citizenship cannot be held.

The high court’s current observations are especially significant in light of several accounts of individuals being certified citizens by FTs only to be detained by police and ultimately judged to be foreigners, especially in the state of Assam.

On December 16, 2018, The media reported on the case of Hasina Banu, who was labeled an Indian citizen by an FT in 2016 but was later labeled a foreigner by the very same FT in 2021 after the Assam border police submitted a new complaint against her on grounds of being a foreigner.

In Banu’s case, the Gauhati high court overturned the FT’s 2021 judgment and granted her release, invoking the Kuddus decision and the doctrine of res judicata. That bench also included Justice Kotishwar Singh, who was a member of the bench that was hearing the current case.

The present case

According to Live Law, the high court, in each petition, determined whether the petitioner had been determined to be an Indian citizen by an FT in a previous case, based on its current observations on the applicability of res judicata in the proceedings of FTs.

The court stated that the petitioner will be presumed to be an Indian in all circumstances when the petitioner was first determined to be Indian and then deemed to be a foreigner. As a result, the court dismissed all of the petitions before it in the current case.

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