REPORTABLE

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)

W I T H

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 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 3774 OF 2019)

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)

W I T H

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

O R D E R  

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

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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.

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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

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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.”

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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.

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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.  

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(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

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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 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  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

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 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

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