Once declared Indian, person can’t be tried again and pronounced foreigner: Gauhati HC

This is significant because there have been several instances of a person being tried for their nationality at the tribunals after being already declared an Indian citizen.

The court, while hearing a set of petitions by such people, invoked a May 2019 order by the Supreme Court (Abdul Kuddus vs Union of India) to arrive at its judgment. Simultaneously, it cleared the air on a 2018 Gauhati High Court order (Amina Khatoon vs State of Assam) which had adjudicated that the principle of ‘res judicata’ did not apply to the foreigners’ tribunals since they were only quasi-judicial bodies and not full-fledged courts. The Gauhati High Court, in its latest order, however, found the 2018 judgment to be “no more a good law” and “as such, cannot be relied upon anymore”.

The court said, “In the present proceeding, the Tribunal has to first determine whether the petitioner is the same person who was proceeded in the earlier proceeding. Thus, the scope of examination is confined only to the issue of whether the petitioner is the same person who had proceeded earlier or not.” Once the person’s identity was established to be the same, it was not required for the tribunals to deliberate on the evidence all over again, the court said.

Last year, in December 2021, the Gauhati High Court had set aside an order passed by a Foreigners’ Tribunal declaring a resident of Darrang district as a foreigner after noting that the same Tribunal had earlier declared her to be an Indian citizen. It had cited the principle of ‘res judicata’ then, too.